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549.US.84
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After the Interior Department’s Minerals Management Service (MMS) issued administrative orders assessing petitioners for royalty underpayments on gas leases they held on Government lands, petitioners filed an administrative appeal, contending, inter alia, that the proceedings were barred by 28 U. S. C. §2415(a), which provides in relevant part: “[E]very action for money damages brought by the United States or an … agency thereof which is founded upon any contract … , shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings.” (Emphasis added.) The Assistant Secretary of the Interior denied the appeals, ruling that §2415(a) did not govern the administrative order. The District Court agreed, and the Court of Appeals affirmed. Held: Section 2415(a)’s 6-year statute of limitations applies only to court actions, not to the administrative payment orders involved in this case. Pp. 5–16. (a) Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning. Read in this way, §2415(a)’s text is quite clear: Its key terms—“action” and “complaint”—are ordinarily used in connection with judicial, not administrative, proceedings. See, e.g., Unexcelled Chem. Corp. v. United States, 345 U. S. 59, 66. The phrase “action for money damages” reinforces this reading because the term “damages” is generally used to mean pecuniary compensation or indemnity recovered in court. Moreover, the fact that §2415(a) distinguishes between judicial and administrative proceedings by providing that an “action” must commence “within one year after final decisions have been rendered in applicable administrative proceedings” shows that Congress knew how to identify administrative proceedings and manifestly had two separate concepts in mind when it enacted §2415(a). Pp. 5–6. (b) Petitioners’ assertion that §2415(a)’s term “action” is commonly used to refer to administrative, as well as judicial, proceedings, is not persuasive. The numerous statutes and regulations cited to document this supposed usage actually undermine petitioners’ argument, since none of them uses the term “action” standing alone to refer to administrative proceedings. Rather, each includes a modifier, referring to an “administrative action,” a “civil or administrative action,” or “administrative enforcement actions.” Section 2415(a)’s references to “every action for money damages” founded upon “any contract” (emphasis added) do not assist petitioners, as they do not broaden the ordinary meaning of the key term “action.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546, and West v. Gibson, 527 U. S. 212, distinguished. Pp. 6–9. (c) Petitioners’ suggestion that an MMS payment order constitutes a “complaint” under §2415(a) is also rejected. Their examples of statutes and regulations employing the term “complaint” in the administrative context are unavailing, since such occasional usage of the term does not alter its primary meaning, which concerns the initiation of a civil action. Moreover, an MMS payment order lacks the essential attributes of a complaint, which is a filing that commences a proceeding that may result in a legally binding order providing relief. In contrast, an MMS order in and of itself imposes a legal obligation on the party to which it is issued. Given that the failure to comply with such an order can result in fines of up to $10,000 a day, see 30 U. S. C. §1719(c), the order plays an entirely different role from that of a “complaint.” Pp. 9–10. (d) Any remaining doubts are erased by the canon that statutes of limitations are construed narrowly against the government. This canon is rooted in the traditional rule that time does not run against the King. A corollary of this rule is that a sovereign that elects to subject itself to a statute of limitations is given the benefit of the doubt if the statute’s scope is ambiguous. Bowers v. New York & Albany Lighterage Co., 273 U. S. 346, distinguished. Pp. 10–11. (e) The Court disagrees with petitioners’ argument that interpreting §2415(a) as applying only to judicial actions renders §2415(i)—which specifies that “[t]he provisions of this section shall not prevent the United States … from collecting any claim … by means of administrative offset”—superfluous in contravention of the canon against reading a statute in a way that makes part of it redundant. Under the Court’s interpretation, §2415(i) is not mere surplusage, but clarifies that administrative offsets are not covered by §2415(a) even if they are viewed as an adjunct of a court action. To accept petitioners’ argument, on the other hand, the Court would have to hold either that §2415(a) applied to administrative actions when it was enacted in 1966 or that it was extended to reach administrative actions when §2415(i) was added in 1982. The clear meaning of §2415(a)’s text, which has not been amended, refutes the first of these propositions, and accepting the latter would require the unrealistic conclusion that in 1982 Congress proceeded to enlarge §2415 to cover administrative proceedings by the oblique and cryptic route of inserting text expressly excluding a single administrative vehicle from the statute’s reach. Pp. 11–14. (f) Although interpreting §2415(a) as applying only to judicial actions may result in certain peculiarities, petitioners’ alternative interpretation would itself result in disharmony. For instance, MMS oil and gas lease payment orders are now prospectively subject to a 7-year statute of limitations except with respect to obligations arising out of leases of Indian land. 30 U. S. C. §1724(b)(1). Given the exhortation that the Interior Secretary “aggressively carry out his trust responsibility in the administration of Indian oil and gas,” §1701(a)(4), it seems unlikely that Congress intended to impose a shorter, 6-year statute of limitations for payment orders regarding Indian lands. Finally, while cogent, petitioners’ policy arguments as to why limiting §2415(a) to judicial actions frustrates the statute’s purposes must be viewed in perspective. For example, because there are always policy arguments against affording the sovereign special treatment, the relevant inquiry in a case like this is simply how far Congress meant to go when it enacted the statute of limitations in question. Prior to §2415(a)’s enactment, Government contract actions were not subject to any statute of limitations. See Guaranty Trust Co. v. United States, 304 U. S. 126, 132. Absent congressional action changing this rule, it remains the law, and §2415(a) betrays no intent to change the rule as it applies to administrative proceedings. Pp. 14–16. 410 F. 3d 722, affirmed. Alito, J., delivered the opinion of the Court, in which all other Members joined, except Roberts, C. J., and Breyer, J., who took no part in the consideration or decision of the case.
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This case presents the question whether administrative payment orders issued by the Department of the Interior’s Minerals Management Service (MMS) for the purpose of assessing royalty underpayments on oil and gas leases fall within 28 U. S. C. §2415(a), which sets out a 6-year statute of limitations for Government contract actions. We hold that this provision does not apply to these administrative payment orders, and we therefore affirm. I A The Mineral Leasing Act of 1920 (MLA) authorizes the Secretary of the Interior to lease public-domain lands to private parties for the production of oil and gas. 41 Stat. 437, as amended, 30 U. S. C. §181 et seq. MLA lessees are obligated to pay a royalty of at least “12.5 percent in amount or value of the production removed or sold from the lease.” §226(b)(1)(A). In 1982, Congress enacted the Federal Oil and Gas Royalty Management Act (FOGRMA), 96 Stat. 2447, as amended, 30 U. S. C. §1701 et seq., to address the concern that the “system of accounting with respect to royalties and other payments due and owing on oil and gas produced from such lease sites [was] archaic and inadequate.” §1701(a)(2). FOGRMA ordered the Secretary of the Interior to “audit and reconcile, to the extent practicable, all current and past lease accounts for leases of oil or gas and take appropriate actions to make additional collections or refunds as warranted.” §1711(c)(1). The Secretary, in turn, has assigned these duties to the MMS. 30 CFR §201.100 (2006). Under FOGRMA, lessees are responsible in the first instance for the accurate calculation and payment of royalties. 30 U. S. C. §1712(a). MMS, in turn, is authorized to audit those payments to determine whether a royalty has been overpaid or underpaid. §§1711(a) and (c); 30 CFR §§206.150(c), 206.170(d). In the event that an audit suggests an underpayment, it is MMS’ [Footnote 1] practice to send the lessee a letter inquiring about the perceived deficiency. If, after reviewing the lessee’s response, MMS concludes that the lessee owes additional royalties, MMS issues an order requiring payment of the amount due. Failure to comply with such an order carries a stiff penalty: “Any person who—(1) knowingly or willfully fails to make any royalty payment by the date as specified by [an] order … shall be liable for a penalty of up to $10,000 per violation for each day such violation continues.” 30 U. S. C. §1719(c). The Attorney General may enforce these orders in federal court. §1722(a). An MMS payment order may be appealed, first to the Director of MMS and then to the Interior Board of Land Appeals or to an Assistant Secretary. 30 CFR §§290.105, 290.108. While filing an appeal does not generally stay the payment order, §218.50(c), MMS will usually suspend the order’s effect after the lessee complies with applicable bonding or financial solvency requirements, §243.8. Congress supplemented this scheme by enacting the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996 (FOGRSFA), 110 Stat. 1700, as amended, 30 U. S. C. §1701 et seq. FOGRSFA adopted a prospective 7-year statute of limitations for any “judicial proceeding or demand” for royalties arising under a federal oil or gas lease. §1724(b)(1). The parties agree that this provision applies both to judicial actions (“judicial proceeding[s]”) and to MMS’ administrative payment orders (“demand[s]”) arising on or after September 1, 1996. Ibid. This provision does not, however, apply to judicial proceedings or demands arising from leases of Indian land or underpayments of royalties on pre-September 1, 1996, production. FOGRSFA §§9, 11, 110 Stat. 1717, notes following 30 U. S. C. §1701. There is no dispute that a lawsuit in court to recover royalties owed to the Government on pre-September 1, 1996, production is covered by 28 U. S. C. §2415(a), which sets out a general 6-year statute of limitations for Government contract actions. That section, which was enacted in 1966, provides in relevant part: “Subject to the provisions of section 2416 of this title, and except as otherwise provided by Congress, every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues or within one year after final decisions have been rendered in applicable administrative proceedings required by contract or by law, whichever is later.” (Emphasis added.) Whether this general 6-year statute of limitations also governs MMS administrative payment orders concerning pre-September 1, 1996, production is the question that we must decide in this case. B Petitioner BP America Production Co. holds gas leases from the Federal Government for lands in New Mexico’s San Juan Basin. BP’s predecessor, Amoco Production Co., first entered into these leases nearly 50 years ago, and these leases require the payment of the minimum 12.5 percent royalty prescribed by 30 U. S. C. §226(b)(1)(A). For years, Amoco calculated the royalty as a percentage of the value of the gas as of the moment it was produced at the well. In 1996, MMS sent lessees a letter directing that royalties should be calculated based not on the value of the gas at the well, but on the value of the gas after it was treated to meet the quality requirements for introduction into the Nation’s mainline pipelines.[Footnote 2] Consistent with this guidance, MMS in 1997 ordered Amoco to pay additional royalties for the period from January 1989 through December 1996 in order to cover the difference between the value of the treated gas and its lesser value at the well. Amoco appealed the order, disputing MMS’ interpretation of its royalty obligations and arguing that the payment order was in any event barred in part by the 6-year statute of limitations in 28 U. S. C. §2415(a). The Assistant Secretary of the Interior denied the appeal and ruled that the statute of limitations was inapplicable. Amoco, together with petitioner Atlantic Richfield Co., sought review in the United States District Court for the District of Columbia, which agreed with the Assistant Secretary that §2415(a) did not govern the administrative order. Amoco Production Co. v. Baca, 300 F. Supp. 2d 1, 21 (2003). The Court of Appeals for the District of Columbia Circuit affirmed, Amoco Production Co. v. Watson, 410 F. 3d 722, 733 (2005), and we granted certiorari, 547 U. S. ___ (2006), in order to resolve the conflict between that decision and the contrary holding of the United States Court of Appeals for the Tenth Circuit in OXY USA, Inc. v. Babbit, 268 F. 3d 1001, 1005 (2001) (en banc). We now affirm. II A We start, of course, with the statutory text. Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 173 (1994). Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning. Perrin v. United States, 444 U. S. 37, 42 (1979). Read in this way, the text of §2415(a) is quite clear. The statute of limitations imposed by §2415(a) applies when the Government commences any “action for money damages” by filing a “complaint” to enforce a contract, and the statute runs from the point when “the right of action accrues.” The key terms in this provision—“action” and “complaint”—are ordinarily used in connection with judicial, not administrative, proceedings. In 1966, when §2415(a) was enacted, a commonly used legal dictionary defined the term “right of action” as “[t]he right to bring suit; a legal right to maintain an action,” with “suit” meaning “any proceeding … in a court of justice.” Black’s Law Dictionary 1488, 1603 (4th ed. 1951) (hereinafter Black’s). Likewise, “complaint” was defined as “the first or initiatory pleading on the part of the plaintiff in a civil action.”[Footnote 3] Id., at 356. See also Unexcelled Chemical Corp. v. United States, 345 U. S. 59, 66 (1953) (holding that filing a complaint, in the ordinary sense of the term, means filing a suit in court, not initiating an administrative proceeding; “Commencement of an action by the filing of a complaint has too familiar a history … for us to assume that Congress did not mean to use the words in their ordinary sense”). The phrase “action for money damages” reinforces this reading because the term “damages” is generally used to mean “pecuniary compensation or indemnity, which may be recovered in the courts.” Black’s 466 (emphasis added). Nothing in the language of §2415(a) suggests that Congress intended these terms to apply more broadly to administrative proceedings. On the contrary, §2415(a) distinguishes between judicial and administrative proceedings. Section 2415(a) provides that an “action” must commence “within one year after final decisions have been rendered in applicable administrative proceedings.” Thus, Congress knew how to identify administrative proceedings and manifestly had two separate concepts in mind when it enacted §2415(a).[Footnote 4] B In an effort to show that the term “action” is commonly used to refer to administrative, as well as judicial, proceedings, petitioners have cited numerous statutes and regulations that, petitioners claim, document this usage.[Footnote 5] These examples, however, actually undermine petitioners’ argument, since none of them uses the term “action” standing alone to refer to administrative proceedings. Rather, each example includes a modifier of some sort, referring to an “administrative action,” a “civil or administrative action,” or “administrative enforcement actions.” This pattern of usage buttresses the point that the term “action,” standing alone, ordinarily refers to a judicial proceeding. Petitioners contend that their broader interpretation of the statutory term “action” is supported by the reference to “every action for money damages” founded upon “any contract.” 28 U. S. C. §2415(a) (emphasis added). But the broad terms “every” and “any” do not assist petitioners, as they do not broaden the ordinary meaning of the key term “action.” Petitioners argue that their interpretation is supported by Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U. S. 546 (1986), and West v. Gibson, 527 U. S. 212 (1999), but this reliance is misplaced. In Delaware Valley Citizens’ Council, we construed the attorney’s fee provision of the Clean Water Act (CWA), which authorizes a “court, in issuing any final order in any action brought pursuant to subsection (a) of this section, [to] award costs of litigation … to any party.” 42 U. S. C. §7604(d). We permitted the recovery of fees both for work done in court and in subsequent administrative proceedings. But the pertinent statutory provision in that case did not employ the key terms that appear in the statute at issue here. Specifically, the CWA provision referred to “litigation,” not to an “action” commenced by the filing of a “complaint.” Moreover, “the work done by counsel [in the administrative phase of the case] was as necessary to the attainment of adequate relief … as was all of their earlier work in the courtroom … obtaining the consent decree.” 478 U. S., at 558. And we expressly reserved judgment on the question “whether an award of attorney’s fees is appropriate … when there is no connected court action in which fees are recoverable.” Id., at 560, n. 5. West helps petitioners even less. There, we considered whether the Equal Employment Opportunity Commission (EEOC) could order a federal agency to pay compensatory damages in an administrative proceeding. Section 717(b) of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–16(b), authorized the EEOC to employ “appropriate remedies,” but did not specifically authorize damages, and §717(c) authorized a subsequent court action against an employer agency, 42 U. S. C. §2000e–16(c). In 1991, Congress added Rev. Stat. §1977A(a)(1), 42 U. S. C. §1981a(a)(1), which provided that “[i]n an action brought by a complaining party under section 706 or 717 … the complaining party may recover compensatory … damages.” In West, the defendant agency argued that the enactment of §1981a(a)(1) showed that Congress did not consider compensatory damages to be “appropriate remedies” in an EEOC proceeding, as opposed to an action brought by an aggrieved employee. If Congress had wished to authorize the award of compensatory damages in an EEOC proceeding, the defendant agency reasoned, Congress would have so provided in §1981a(a)(l), by expressly cross-referencing §717(c). We rejected this argument, but in doing so we did not hold that an EEOC proceeding is an “action” under §1981a(a)(1). Rather, we simply concluded that the EEOC’s authorization under §717(b) to award “appropriate remedies” was broad enough to encompass compensatory damages. 527 U. S., at 220–221. For these reasons, we are not persuaded by petitioners’ argument that the term “action” in §2415(a) applies to the administrative proceedings that follow the issuance of an MMS payment order. C We similarly reject petitioners’ suggestion that an MMS letter or payment order constitutes a “complaint” within the meaning of §2415(a). Petitioners point to examples of statutes and regulations that employ the term “complaint” in the administrative context. See, e.g., 15 U. S. C. §45(b) (requiring the Federal Trade Commission to serve a “complaint” on a party suspected of engaging in an unfair method of competition); 29 CFR §102.15 (2006) (a “complaint” initiates unfair labor practice proceedings before the National Labor Relations Board). But the occasional use of the term to describe certain administrative filings does not alter its primary meaning, which concerns the initiation of “a civil action.” Black’s 356. Moreover, even if the distinction between administrative and judicial proceedings is put aside, an MMS payment order lacks the essential attributes of a complaint. While a complaint is a filing that commences a proceeding that may in the end result in a legally binding order providing relief, an MMS payment order in and of itself imposes a legal obligation on the party to which it is issued. As noted, the failure to comply with such an order can result in fines of up to $10,000 a day. An MMS payment order, therefore, plays an entirely different role from that of a “complaint.”[Footnote 6] D To the extent that any doubts remain regarding the meaning of §2415(a), they are erased by the rule that statutes of limitations are construed narrowly against the government. E. I. DuPont de Nemours & Co. v. Davis, 264 U. S. 456 (1924). This canon is rooted in the traditional rule quod nullum tempus occurrit regi—time does not run against the King. Guaranty Trust Co. v. United States, 304 U. S. 126, 132 (1938). A corollary of this rule is that when the sovereign elects to subject itself to a statute of limitations, the sovereign is given the benefit of the doubt if the scope of the statute is ambiguous. Bowers v. New York & Albany Lighterage Co., 273 U. S. 346 (1927), cited by petitioners, is not to the contrary. There, as here, the issue was the scope of a statute of limitations. The provision in that case, however, provided that “ ‘[n]o suit or proceeding for the collection of any such taxes’ ” shall commence more than five years after the filing of the return. Id., at 348–349. The Government argued that the terms “proceeding” and “suit” were coterminous, and urged further that any ambiguity should be resolved in its favor. The Court recognized the canon, restating it much as we have above. Id., at 349. But the Court concluded that the canon had no application in that case because the text of the relevant statute, unlike §2415(a), applied clearly and separately to “suits” and “proceedings,” and the Court saw no reason to give these different terms the same meaning. Id., at 349–350. E We come now to petitioners’ argument that interpreting §2415(a) as applying only to judicial actions would render subsection (i) of the same statute superfluous. Subsection (i) provides as follows: “The provisions of this section shall not prevent the United States or an officer or agency thereof from collecting any claim of the United States by means of administrative offset, in accordance with section 3716 of title 31.” 28 U. S. C. §2415(i). An administrative offset is a mechanism by which the Government withholds payment of a debt that it owes another party in order to recoup a payment that this party owes the Government. 31 U. S. C. §3701(a)(1). Thus, under subsection (i), the Government may recover a debt via an administrative offset even if the Government would be time barred under subsection (a) from pursuing the debt in court. Petitioners argue that, if §2415(a) applies only to judicial proceedings and not to administrative proceedings, there is no need for §2415(i)’s rule protecting a particular administrative mechanism (i.e., an administrative offset) from the statute of limitations set out in subsection (a). Invoking the canon against reading a statute in a way that makes part of the statute redundant, see, e.g., TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001), petitioners contend that subsection (i) shows that subsection (a) was meant to apply to administrative, as well as judicial, proceedings. We disagree. As the Court of Appeals noted, subsection (i) was not enacted at the same time as subsection (a) but rather was added 16 years later by the Debt Collection Act of 1982. 96 Stat. 1749. This enactment followed a dispute between the Office of the Comptroller of the Currency (OCC) and the Department of Justice’s Office of Legal Counsel (OLC) over whether an administrative offset could be used to recoup a debt where a judicial recoupment action was already time barred. In 1978, in response to a question from the United States Civil Service Commission, OLC opined that an administrative offset could not be used to recoup a debt as to which a judicial action was already time barred. OLC reached this conclusion not because it believed that §2415(a) reached administrative proceedings generally,[Footnote 7] but rather because of the particular purpose of an administrative offset. “Where [a] debt has not been reduced to judgment,” OLC stated, “an administrative offset is merely a pre-judgment attachment device.” Memorandum from John M. Harmon, Assistant Attorney General, OLC, to Alan K. Campbell, Chairman, U. S. Civil Service Commission Re: Effect of Statute of Limitations on Administrative Collection of United States Claims 3 (Sept. 29, 1978), Joint Lodging. OLC opined that a prejudgment attachment device such as this exists only to preserve funds to satisfy any judgment the creditor subsequently obtains. Id., at 4 (citing cases). OLC therefore concluded that, where a lawsuit is already foreclosed by §2415(a), an administrative offset that is the functional equivalent of a pretrial attachment is also unavailable. Id., at 3. The OCC disagreed. See In the Matter of Collection of Debts—Statute of Limitations on Administrative Setoff, 58 Comp. Gen. 501, 504–505 (1979). In its view, the question was answered by “[t]he general rule … that statutes of limitations applicable to suits for debts or money demands bar or run only against the remedy (the right to bring suit) to which they apply and do not discharge the debt or extinguish, or even impair, the right or obligation, either in law or in fact, and the creditor may avail himself of every other lawful means of realizing on the debt or obligation. See Mascot Oil Co. v. United States, 42 F. 2d 309 (Ct. Cl. 1930), affirmed 282 U. S. 434; and 33 Comp. Gen. 66 (1953). See also Ready-Mix Concrete Co. v. United States, 130 F. Supp. 390 (Ct. Cl. 1955).” Ibid. That Congress had time-barred the judicial remedy, OCC reasoned, imposed no limit on the administrative remedy. The OLC–OCC dispute reveals that, even under the interpretation of subsection (a)—the one we are adopting—that considers it applicable only to court proceedings, subsection (i) is not mere surplusage. It clarifies that administrative offsets are not covered by subsection (a) even if they are viewed as an adjunct of a court action. To accept petitioners’ argument, on the other hand, we would have to hold either that §2415(a) applied to administrative actions when it was enacted in 1966 or that it was extended to reach administrative actions when subsection (i) was added in 1982. The clear meaning of the text of §2415(a), which has not been amended, refutes the first of these propositions, and accepting the latter would require us to conclude that in 1982 Congress elected to enlarge §2415 to cover administrative proceedings by inserting text expressly excluding a single administrative vehicle from the statute’s reach. It is entirely unrealistic to suggest that Congress would proceed by such an oblique and cryptic route. III Petitioners contend that interpreting §2415(a) as applying only to judicial actions results in a statutory scheme with peculiarities that Congress could not have intended. For example, petitioners note that while they are required by statute to preserve their records regarding royalty obligations for only seven years, 30 U. S. C. §1724(f), the interpretation of §2415(a) adopted by the Court of Appeals permits MMS to issue payment orders that reach back much farther. We are mindful of the fact that a statute should be read where possible as effecting a “ ‘symmetrical and coherent regulatory scheme,’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000), but here petitioners’ alternative interpretation of §2415(a) would itself result in disharmony. For instance, under FOGRSFA, MMS payment orders regarding oil and gas leases are now prospectively subject to a 7-year statute of limitations except with respect to obligations arising out of leases of Indian land. Consequently, if we agreed with petitioners that §2415(a) applies generally to administrative proceedings, payment orders relating to oil and gas royalties owed under leases of Indian land would be subject to a shorter (i.e., 6-year) statute of limitations than similar payment orders relating to leases of other public-domain lands (which would be governed by FOGRSFA’s new 7-year statute). Particularly in light of Congress’ exhortation that the Secretary of the Interior “aggressively carry out his trust responsibility in the administration of Indian oil and gas,” 30 U. S. C. §1701(a)(4), it seems unlikely that Congress intended to impose a shorter statute of limitations for payment orders regarding Indian lands. Petitioners contend, finally, that interpreting §2415(a) as applying only to judicial actions would frustrate the statute’s purposes of providing repose, ensuring that actions are brought while evidence is fresh, lightening recordkeeping burdens, and pressuring federal agencies to assert federal rights promptly. These are certainly cogent policy arguments, but they must be viewed in perspective. For one thing, petitioners overstate the scope of the problem, since Congress of course can enact and has enacted specific statutes of limitations to govern specific administrative actions. See, e.g., 42 U. S. C. §5205(a)(1) (statute of limitations for an administrative action to recover payments made to state governments for disaster or emergency assistance). Indeed, in 1996, FOGRSFA imposed just such a limitation prospectively on all non-Indian land, oil, and gas lease claims. Second, and more fundamentally, the consequences of interpreting §2415(a) as limited to court actions must be considered in light of the traditional rule exempting proceedings brought by the sovereign from any time bar. There are always policy arguments against affording the sovereign this special treatment, and therefore in a case like this, where the issue is how far Congress meant to go when it enacted a statute of limitations applicable to the Government, arguing that an expansive interpretation would serve the general purposes of statutes of limitations is somewhat beside the point. The relevant inquiry, instead, is simply how far Congress meant to go when it enacted the statute of limitations in question. Here prior to the enactment of §2415(a) in 1966, contract actions brought by the Government were not subject to any statute of limitations. See Guaranty Trust Co., 304 U. S., at 132. Absent congressional action changing this rule, it remains the law, and the text of §2415(a) betrays no intent to change this rule as it applies to administrative proceedings. In the final analysis, while we appreciate petitioners’ arguments, they are insufficient to overcome the plain meaning of the statutory text. We therefore hold that the 6-year statute of limitations in §2415(a) applies only to court actions and not to the administrative proceedings involved in this case. * * * For these reasons, the judgment of the Court of Appeals for the District of Columbia Circuit is affirmed. It is so ordered. The Chief Justice and Justice Breyer took no part in the consideration or decision of this case. Footnote 1 MMS is not always the auditing body, as MMS may delegate its authority to the host State or an Indian tribe. 30 U. S. C. §§1732, 1735. Footnote 2 MMS intended this letter to implement its regulations, which required lessees “to place gas in marketable condition at no cost to the Federal Government unless otherwise provided in the lease agreement.” 30 CFR §206.152(i) (1996). Footnote 3 These primary definitions have not changed in substance since 1966. Black’s (8th ed. 2004) now defines “action” as “[a] civil or criminal judicial proceeding” and a “complaint” as “[t]he initial pleading that starts a civil action and states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, and the demand for relief.” Id., at 31, 303. Footnote 4 Moreover, it seems unlikely that Congress intended administrative proceedings to commence within one year after the conclusion of administrative proceedings. Footnote 5 See, e.g., 42 U. S. C. §5205(a)(1) (statute of limitations for “administrative action[s] to recover any payment[s] made to a State or local government for disaster or emergency assistance”); 12 U. S. C. §1441a(b)(11)(G) (requiring Resolution Trust Corporation to maintain staff to assist with certain “cases, civil claims, and administrative enforcement actions”); 15 U. S. C. §78u(h)(9)(B) (Securities Exchange Act of 1934 provision noting that certain “[f]inancial records … may be disclosed or used only in an administrative, civil, or criminal action”). See also 7 CFR §3018.400(c) (2006) (Department of Agriculture regulation regarding “administrative action[s] for the imposition of a civil penalty” for failure to file disclosure forms); 71 Fed. Reg. 7407 (2006) (to be codified in 12 CFR §1412.2(l)(1)) (Farm Credit System Insurance Corporation regulation defining “prohibited indemnification payment” to include reimbursement for a civil money penalty of judgment resulting from any “administrative or civil action” instituted by the Farm Credit Administration); 10 CFR pt. 820, App. A, IX–b (2006) (“Administrative actions, such as determination of award fees where [Department of Energy] contracts provide for such determinations, will be considered separately from any civil penalties that may be imposed under this Enforcement Policy”). Footnote 6 There was some question at oral argument whether MMS’ initial letter might constitute a “complaint” within the meaning of §2415(a). Petitioners did not advance this argument, and recognized at oral argument that neither the statute nor the regulations require the issuance of such a letter. Tr. of Oral Arg. 7–9. The Government, for its part, observed that all such a letter does is request information, as the agency has not yet decided whether to assert a claim. Id., at 28. This is not a complaint. Footnote 7 Indeed, what emerges strikingly from OLC’s 1978 opinion is that no one at the time—neither OLC nor OCC—even contemplated that §2415(a) applied to administrative procedures in the first instance. Nor have petitioners pointed to any source demonstrating otherwise.
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551.US.249
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After officers stopped a car to check its registration without reason to believe it was being operated unlawfully, one of them recognized petitioner Brendlin, a passenger in the car. Upon verifying that Brendlin was a parole violator, the officers formally arrested him and searched him, the driver, and the car, finding, among other things, methamphetamine paraphernalia. Charged with possession and manufacture of that substance, Brendlin moved to suppress the evidence obtained in searching his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop, which was an unconstitutional seizure of his person. The trial court denied the motion, but the California Court of Appeal reversed, holding that Brendlin was seized by the traffic stop, which was unlawful. Reversing, the State Supreme Court held that suppression was unwarranted because a passenger is not seized as a constitutional matter absent additional circumstances that would indicate to a reasonable person that he was the subject of the officer’s investigation or show of authority. Held: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality. Pp. 4–13. (a) A person is seized and thus entitled to challenge the government’s action when officers, by physical force or a show of authority, terminate or restrain the person’s freedom of movement through means intentionally applied. Florida v. Bostick, 501 U. S. 429, 434; Brower v. County of Inyo, 489 U. S. 593, 597. There is no seizure without that person’s actual submission. See, e.g., California v. Hodari D., 499 U. S. 621, 626, n. 2. When police actions do not show an unambiguous intent to restrain or when an individual’s submission takes the form of passive acquiescence, the test for telling when a seizure occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. E.g., United States v. Mendenhall, 446 U. S. 544, 554 (principal opinion). But when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, supra, at 435–436. Pp. 4–6. (b) Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra, at 436. Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails a passenger’s travel just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U. S. 543, 554. An officer who orders a particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect the officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. It is also reasonable for passengers to expect that an officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. See, e.g., Maryland v. Wilson, 519 U. S. 408, 414–415. The Court’s conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question. Pp. 6–9. (c) The State Supreme Court’s contrary conclusion reflects three premises with which this Court respectfully disagrees. First, the view that the police only intended to investigate the car’s driver and did not direct a show of authority toward Brendlin impermissibly shifts the issue from the intent of the police as objectively manifested to the motive of the police for taking the intentional action to stop the car. Applying the objective Mendenhall test resolves any ambiguity by showing that a reasonable passenger would understand that he was subject to the police display of authority. Second, the state court’s assumption that Brendlin, as the passenger, had no ability to submit to the police show of authority because only the driver was in control of the moving car is unavailing. Brendlin had no effective way to signal submission while the car was moving, but once it came to a stop he could, and apparently did, submit by staying inside. Third, there is no basis for the state court’s fear that adopting the rule this Court applies would encompass even those motorists whose movement has been impeded due to the traffic stop of another car. An occupant of a car who knows he is stuck in traffic because another car has been pulled over by police would not perceive the show of authority as directed at him or his car. Pp. 9–13. (d) The state courts are left to consider in the first instance whether suppression turns on any other issue. P. 13. 38 Cal. 4th 1107, 136 P. 3d 845, vacated and remanded. Souter, J., delivered the opinion for a unanimous Court.
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When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment. The question in this case is whether the same is true of a passenger. We hold that a passenger is seized as well and so may challenge the constitutionality of the stop. I Early in the morning of November 27, 2001, Deputy Sheriff Robert Brokenbrough and his partner saw a parked Buick with expired registration tags. In his ensuing conversation with the police dispatcher, Brokenbrough learned that an application for renewal of registration was being processed. The officers saw the car again on the road, and this time Brokenbrough noticed its display of a temporary operating permit with the number “11,” indicating it was legal to drive the car through November. App. 115. The officers decided to pull the Buick over to verify that the permit matched the vehicle, even though, as Brokenbrough admitted later, there was nothing unusual about the permit or the way it was affixed. Brokenbrough asked the driver, Karen Simeroth, for her license and saw a passenger in the front seat, petitioner Bruce Brendlin, whom he recognized as “one of the Brendlin brothers.” Id., at 65. He recalled that either Scott or Bruce Brendlin had dropped out of parole supervision and asked Brendlin to identify himself.[Footnote 1] Brokenbrough returned to his cruiser, called for backup, and verified that Brendlin was a parole violator with an outstanding no-bail warrant for his arrest. While he was in the patrol car, Brokenbrough saw Brendlin briefly open and then close the passenger door of the Buick. Once reinforcements arrived, Brokenbrough went to the passenger side of the Buick, ordered him out of the car at gunpoint, and declared him under arrest. When the police searched Brendlin incident to arrest, they found an orange syringe cap on his person. A patdown search of Simeroth revealed syringes and a plastic bag of a green leafy substance, and she was also formally arrested. Officers then searched the car and found tubing, a scale, and other things used to produce methamphetamine. Brendlin was charged with possession and manufacture of methamphetamine, and he moved to suppress the evidence obtained in the searches of his person and the car as fruits of an unconstitutional seizure, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop. He did not assert that his Fourth Amendment rights were violated by the search of Simeroth’s vehicle, cf. Rakas v. Illinois, 439 U. S. 128 (1978), but claimed only that the traffic stop was an unlawful seizure of his person. The trial court denied the suppression motion after finding that the stop was lawful and Brendlin was not seized until Brokenbrough ordered him out of the car and formally arrested him. Brendlin pleaded guilty, subject to appeal on the suppression issue, and was sentenced to four years in prison. The California Court of Appeal reversed the denial of the suppression motion, holding that Brendlin was seized by the traffic stop, which they held unlawful. 8 Cal. Rptr. 3d 882 (2004) (officially depublished). By a narrow majority, the Supreme Court of California reversed. The State Supreme Court noted California’s concession that the officers had no reasonable basis to suspect unlawful operation of the car, 38 Cal. 4th 1107, 1114, 136 P. 3d 845, 848 (2006),[Footnote 2] but still held suppression unwarranted because a passenger “is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer’s investigation or show of authority,” id., at 1111, 136 P. 3d, at 846. The court reasoned that Brendlin was not seized by the traffic stop because Simeroth was its exclusive target, id., at 1118, 136 P. 3d, at 851, that a passenger cannot submit to an officer’s show of authority while the driver controls the car, id., at 1118–1119, 135 P. 3d, at 851–852, and that once a car has been pulled off the road, a passenger “would feel free to depart or otherwise to conduct his or her affairs as though the police were not present,” id., at 1119, 136 P. 3d, at 852. In dissent, Justice Corrigan said that a traffic stop entails the seizure of a passenger even when the driver is the sole target of police investigation because a passenger is detained for the purpose of ensuring an officer’s safety and would not feel free to leave the car without the officer’s permission. Id., at 1125, 136 P. 3d, at 856. We granted certiorari to decide whether a traffic stop subjects a passenger, as well as the driver, to Fourth Amendment seizure, 549 U. S. __ (2007). We now vacate. II A A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, “ ‘by means of physical force or show of authority,’ ” terminates or restrains his freedom of movement, Florida v. Bostick, 501 U. S. 429, 434 (1991) (quoting Terry v. Ohio, 392 U. S. 1, 19, n. 16 (1968)), “through means intentionally applied,” Brower v. County of Inyo, 489 U. S. 593, 597 (1989) (emphasis in original). Thus, an “unintended person … [may be] the object of the detention,” so long as the detention is “willful” and not merely the consequence of “an unknowing act.” Id., at 596; cf. County of Sacramento v. Lewis, 523 U. S. 833, 844 (1998) (no seizure where a police officer accidentally struck and killed a motorcycle passenger during a high-speed pursuit). A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. See California v. Hodari D., 499 U. S. 621, 626, n. 2 (1991); Lewis, supra, at 844, 845, n. 7. When the actions of the police do not show an unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not. The test was devised by Justice Stewart in United States v. Mendenhall, 446 U. S. 544 (1980), who wrote that a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” id., at 554 (principal opinion). Later on, the Court adopted Justice Stewart’s touchstone, see, e.g., Hodari D., supra, at 627; Michigan v. Chesternut, 486 U. S. 567, 573 (1988); INS v. Delgado, 466 U. S. 210, 215 (1984), but added that when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter,” Bostick, supra, at 435–436; see also United States v. Drayton, 536 U. S. 194, 202 (2002). The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver “even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U. S. 648, 653 (1979); see also Whren v. United States, 517 U. S. 806, 809–810 (1996). And although we have not, until today, squarely answered the question whether a passenger is also seized, we have said over and over in dicta that during a traffic stop an officer seizes everyone in the vehicle, not just the driver. See, e.g., Prouse, supra, at 653 (“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth and Fourteenth] Amendments”); Colorado v. Bannister, 449 U. S. 1, 4, n. 3 (1980) (per curiam) (“There can be no question that the stopping of a vehicle and the detention of its occupants constitute a ‘seizure’ within the meaning of the Fourth Amendment”); Berkemer v. McCarty, 468 U. S. 420, 436–437 (1984) (“[W]e have long acknowledged that stopping an automobile and detaining its occupants constitute a seizure” (internal quotation marks omitted)); United States v. Hensley, 469 U. S. 221, 226 (1985) (“[S]topping a car and detaining its occupants constitute a seizure”); Whren, supra, at 809–810 (“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment]”). We have come closest to the question here in two cases dealing with unlawful seizure of a passenger, and neither time did we indicate any distinction between driver and passenger that would affect the Fourth Amendment analysis. Delaware v. Prouse considered grounds for stopping a car on the road and held that Prouse’s suppression motion was properly granted. We spoke of the arresting officer’s testimony that Prouse was in the back seat when the car was pulled over, see 440 U. S., at 650, n. 1, described Prouse as an occupant, not as the driver, and referred to the car’s “occupants” as being seized, id., at 653. Justification for stopping a car was the issue again in Whren v. United States, where we passed upon a Fourth Amendment challenge by two petitioners who moved to suppress drug evidence found during the course of a traffic stop. See 517 U. S., at 809. Both driver and passenger claimed to have been seized illegally when the police stopped the car; we agreed and held suppression unwarranted only because the stop rested on probable cause. Id., at 809–810, 819. B The State concedes that the police had no adequate justification to pull the car over, see n. 2, supra, but argues that the passenger was not seized and thus cannot claim that the evidence was tainted by an unconstitutional stop. We resolve this question by asking whether a reasonable person in Brendlin’s position when the car stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra, at 436. We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U. S. 543, 554 (1976). An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. Cf. Drayton, supra, at 197–199, 203–204 (finding no seizure when police officers boarded a stationary bus and asked passengers for permission to search for drugs).[Footnote 3] It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U. S. 408 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id., at 414–415; cf. Pennsylvania v. Mimms, 434 U. S. 106 (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that “ ‘[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.’ ” Wilson, supra, at 414 (quoting Michigan v. Summers, 452 U. S. 692, 702–703 (1981)). What we have said in these opinions probably reflects a societal expectation of “ ‘unquestioned [police] command’ ” at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson, supra, at 414.[Footnote 4] Our conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question. See United States v. Kimball, 25 F. 3d 1, 5 (CA1 1994); United States v. Mosley, 454 F. 3d 249, 253 (CA3 2006); United States v. Rusher, 966 F. 2d 868, 874, n. 4 (CA4 1992); United States v. Grant, 349 F. 3d 192, 196 (CA5 2003); United States v. Perez, 440 F. 3d 363, 369 (CA6 2006); United States v. Powell, 929 F. 2d 1190, 1195 (CA7 1991); United States v. Ameling, 328 F. 3d 443, 446–447, n. 3 (CA8 2003); United States v. Twilley, 222 F. 3d 1092, 1095 (CA9 2000); United States v. Eylicio-Montoya, 70 F. 3d 1158, 1163–1164 (CA10 1995); State v. Bowers, 334 Ark. 447, 451–452, 976 S. W. 2d 379, 381–382 (1998); State v. Haworth, 106 Idaho 405, 405–406, 679 P. 2d 1123, 1123–1124 (1984); People v. Bunch, 207 Ill. 2d 7, 13, 796 N. E. 2d 1024, 1029 (2003); State v. Eis, 348 N. W. 2d 224, 226 (Iowa 1984); State v. Hodges, 252 Kan. 989, 1002–1005, 851 P. 2d 352, 361–362 (1993); State v. Carter, 69 Ohio St. 3d 57, 63, 630 N. E. 2d 355, 360 (1994) (per curiam); State v. Harris, 206 Wis. 2d 243, 253–258, 557 N. W. 2d 245, 249–251 (1996). And the treatise writers share this prevailing judicial view that a passenger may bring a Fourth Amendment challenge to the legality of a traffic stop. See, e.g., 6 W. LaFave, Search and Seizure §11.3(e), pp. 194, 195, and n. 277 (4th ed. 2004 and Supp. 2007) (“If either the stopping of the car, the length of the passenger’s detention thereafter, or the passenger’s removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit” (footnote omitted)); 1 W. Ringel, Searches & Seizures, Arrests and Confessions §11:20, p. 11–98 (2d ed. 2007) (“[A] law enforcement officer’s stop of an automobile results in a seizure of both the driver and the passenger”).[Footnote 5] C The contrary conclusion drawn by the Supreme Court of California, that seizure came only with formal arrest, reflects three premises as to which we respectfully disagree. First, the State Supreme Court reasoned that Brendlin was not seized by the stop because Deputy Sheriff Brokenbrough only intended to investigate Simeroth and did not direct a show of authority toward Brendlin. The court saw Brokenbrough’s “flashing lights [as] directed at the driver,” and pointed to the lack of record evidence that Brokenbrough “was even aware [Brendlin] was in the car prior to the vehicle stop.” 38 Cal. 4th, at 1118, 136 P. 3d, at 851. But that view of the facts ignores the objective Mendenhall test of what a reasonable passenger would understand. To the extent that there is anything ambiguous in the show of force (was it fairly seen as directed only at the driver or at the car and its occupants?), the test resolves the ambiguity, and here it leads to the intuitive conclusion that all the occupants were subject to like control by the successful display of authority. The State Supreme Court’s approach, on the contrary, shifts the issue from the intent of the police as objectively manifested to the motive of the police for taking the intentional action to stop the car, and we have repeatedly rejected attempts to introduce this kind of subjectivity into Fourth Amendment analysis. See, e.g., Whren, 517 U. S., at 813 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”); Chesternut, 486 U. S., at 575, n. 7 (“[T]he subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted”); Mendenhall, 446 U. S., at 554, n. 6 (principal opinion) (disregarding a Government agent’s subjective intent to detain Mendenhall); cf. Rakas, 439 U. S., at 132–135 (rejecting the “target theory” of Fourth Amendment standing, which would have allowed “any criminal defendant at whom a search was directed” to challenge the legality of the search (internal quotation marks omitted)). California defends the State Supreme Court’s ruling on this point by citing our cases holding that seizure requires a purposeful, deliberate act of detention. See Brief for Respondent 9–14. But Chesternut, supra, answers that argument. The intent that counts under the Fourth Amendment is the “intent [that] has been conveyed to the person confronted,” id., at 575, n. 7, and the criterion of willful restriction on freedom of movement is no invitation to look to subjective intent when determining who is seized. Our most recent cases are in accord on this point. In Lewis, 523 U. S. 833, we considered whether a seizure occurred when an officer accidentally ran over a passenger who had fallen off a motorcycle during a high-speed chase, and in holding that no seizure took place, we stressed that the officer stopped Lewis’s movement by accidentally crashing into him, not “through means intentionally applied.” Id., at 844 (emphasis deleted). We did not even consider, let alone emphasize, the possibility that the officer had meant to detain the driver only and not the passenger. Nor is Brower, 489 U. S. 593, to the contrary, where it was dispositive that “Brower was meant to be stopped by the physical obstacle of the roadblock—and that he was so stopped.” Id., at 599. California reads this language to suggest that for a specific occupant of the car to be seized he must be the motivating target of an officer’s show of authority, see Brief for Respondent 12, as if the thrust of our observation were that Brower, and not someone else, was “meant to be stopped.” But our point was not that Brower alone was the target but that officers detained him “through means intentionally applied”; if the car had had another occupant, it would have made sense to hold that he too had been seized when the car collided with the roadblock. Neither case, then, is at odds with our holding that the issue is whether a reasonable passenger would have perceived that the show of authority was at least partly directed at him, and that he was thus not free to ignore the police presence and go about his business. Second, the Supreme Court of California assumed that Brendlin, “as the passenger, had no ability to submit to the deputy’s show of authority” because only the driver was in control of the moving vehicle. 38 Cal. 4th, at 1118, 1119, 136 P. 3d, at 852. But what may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away. Here, Brendlin had no effective way to signal submission while the car was still moving on the roadway, but once it came to a stop he could, and apparently did, submit by staying inside. Third, the State Supreme Court shied away from the rule we apply today for fear that it “would encompass even those motorists following the vehicle subject to the traffic stop who, by virtue of the original detention, are forced to slow down and perhaps even come to a halt in order to accommodate that vehicle’s submission to police authority.” Id., at 1120, 136 P. 3d, at 853. But an occupant of a car who knows that he is stuck in traffic because another car has been pulled over (like the motorist who can’t even make out why the road is suddenly clogged) would not perceive a show of authority as directed at him or his car. Such incidental restrictions on freedom of movement would not tend to affect an individual’s “sense of security and privacy in traveling in an automobile.” Prouse, 440 U. S., at 662. Nor would the consequential blockage call for a precautionary rule to avoid the kind of “arbitrary and oppressive interference by [law] enforcement officials with the privacy and personal security of individuals” that the Fourth Amendment was intended to limit. Martinez-Fuerte, 428 U. S., at 554.[Footnote 6] Indeed, the consequence to worry about would not flow from our conclusion, but from the rule that almost all courts have rejected. Holding that the passenger in a private car is not (without more) seized in a traffic stop would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal.[Footnote 7] The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of “roving patrols” that would still violate the driver’s Fourth Amendment right. See, e.g., Almeida-Sanchez v. United States, 413 U. S. 266, 273 (1973) (stop and search by Border Patrol agents without a warrant or probable cause violated the Fourth Amendment); Prouse, supra, at 663 (police spot check of driver’s license and registration without reasonable suspicion violated the Fourth Amendment). * * * Brendlin was seized from the moment Simeroth’s car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest. It will be for the state courts to consider in the first instance whether suppression turns on any other issue. The judgment of the Supreme Court of California is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The parties dispute the accuracy of the transcript of the suppression hearing and disagree as to whether Brendlin gave his name or the false name “Bruce Brown.” App. 115. Footnote 2 California conceded that the police officers lacked reasonable suspicion to justify the traffic stop because a “ ‘vehicle with an application for renewal of expired registration would be expected to have a temporary operating permit.’ ” 38 Cal. 4th, at 1114, 136 P. 3d, at 848 (quoting Brief for Respondent California in No. S123133 (Sup. Ct. Cal.), p. 24). Footnote 3 Of course, police may also stop a car solely to investigate a passenger’s conduct. See, e.g., United States v. Rodriguez-Diaz, 161 F. Supp. 2d 627, 629, n. 1 (Md. 2001) (passenger’s violation of local seatbelt law); People v. Roth, 85 P. 3d 571, 573 (Colo. App. 2003) (passenger’s violation of littering ordinance). Accordingly, a passenger cannot assume, merely from the fact of a traffic stop, that the driver’s conduct is the cause of the stop. Footnote 4 Although the State Supreme Court inferred from Brendlin’s decision to open and close the passenger door during the traffic stop that he was “awar[e] of the available options,” 38 Cal. 4th 1107, 1120, 136 P. 3d 845, 852 (2006), this conduct could equally be taken to indicate that Brendlin felt compelled to remain inside the car. In any event, the test is not what Brendlin felt but what a reasonable passenger would have understood. Footnote 5 Only two State Supreme Courts, other than California’s, have stood against this tide of authority. See People v. Jackson, 39 P. 3d 1174, 1184–1186 (Colo. 2002) (en banc); State v. Mendez, 137 Wash. 2d 208, 222–223, 970 P. 2d 722, 729 (1999) (en banc). Footnote 6 California claims that, under today’s rule, “all taxi cab and bus passengers would be ‘seized’ under the Fourth Amendment when the cab or bus driver is pulled over by the police for running a red light.” Brief for Respondent 23. But the relationship between driver and passenger is not the same in a common carrier as it is in a private vehicle, and the expectations of police officers and passengers differ accordingly. In those cases, as here, the crucial question would be whether a reasonable person in the passenger’s position would feel free to take steps to terminate the encounter. Footnote 7 Compare Delaware v. Prouse, 440 U. S. 648, 663 (1979) (requiring “at least articulable and reasonable suspicion” to support random, investigative traffic stops), and United States v. Brignoni-Ponce, 422 U. S. 873, 880–884 (1975) (same), with Whren v. United States, 517 U. S. 806, 810 (1996) (“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred”), and Atwater v. Lago Vista, 532 U. S. 318, 354 (2001) (“If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender”).
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549.US.70
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At respondent Musladin’s murder trial, members of the victim’s family sat in the front row of the spectators’ gallery wearing buttons displaying the victim’s image. The trial court denied Musladin’s motion to order the family members not to wear the buttons. The California Court of Appeal upheld Musladin’s conviction, stating that he had to show actual or inherent prejudice to succeed on the buttons claim; citing Holbrook v. Flynn, 475 U. S. 560, as providing the test for inherent prejudice; and ruling that he had not satisfied that test. The Federal District Court denied Musladin’s habeas petition, but the Ninth Circuit reversed and remanded, finding that the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,” 28 U. S. C. §2254(d)(1), as determined by this Court in Estelle v. Williams, 425 U. S. 501, and Flynn, supra. Held: The Ninth Circuit improperly concluded that the California Court of Appeal’s decision was contrary to or an unreasonable application of clearly established federal law as determined by this Court. Pp. 3–7. (a) Because “clearly established Federal law” in §2254(d)(1) “refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision,” Williams v. Taylor, 529 U. S. 362, 412, federal habeas relief may be granted here if the California Court of Appeal’s decision was contrary to or involved an unreasonable application of this Court’s applicable holdings. Pp. 3–4. (b) This Court addressed the effect of courtroom practices on defendants’ fair-trial rights in Williams, in which the State compelled the defendant to stand trial in prison clothes, and Flynn, in which the State seated uniformed state troopers in the row of spectators’ seats immediately behind the defendant at trial. In both cases, which dealt with government-sponsored practices, the Court noted that some practices are so inherently prejudicial that they must be justified by an “essential state” policy or interest. E.g., Williams, supra, at 505. Pp. 4–5. (c) In contrast to state-sponsored courtroom practices, the effect on a defendant’s fair-trial rights of the spectator conduct to which Musladin objects is an open question in this Court’s jurisprudence. The Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial or applied the test for inherent prejudice in Williams and Flynn to spectators’ conduct. Indeed, part of that test—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices. Reflecting the lack of guidance from this Court, lower courts have diverged widely in their treatment of defendants’ spectator-conduct claims. Given the lack of applicable holdings from this Court, it cannot be said that the state court “unreasonably appli[ed] … clearly established Federal law.” Pp. 5–7. 427 F. 3d 653, vacated and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Ginsburg, Breyer, and Alito, JJ., joined. Stevens, J., Kennedy, J., and Souter, J., filed opinions concurring in the judgment.
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This Court has recognized that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial. Estelle v. Williams, 425 U. S. 501, 503–506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986). In this case, a state court held that buttons displaying the victim’s image worn by the victim’s family during respondent’s trial did not deny respondent his right to a fair trial. We must decide whether that holding was contrary to or an unreasonable application of clearly established federal law, as determined by this Court. 28 U. S. C. §2254(d)(1). We hold that it was not. I On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin’s estranged wife, Pamela. At trial, Musladin admitted that he killed Studer but argued that he did so in self-defense. A California jury rejected Musladin’s self-defense argument and convicted him of first-degree murder and three related offenses. During Musladin’s trial, several members of Studer’s family sat in the front row of the spectators’ gallery. On at least some of the trial’s 14 days, some members of Studer’s family wore buttons with a photo of Studer on them.[Footnote 1] Prior to opening statements, Musladin’s counsel moved the court to order the Studer family not to wear the buttons during the trial. The court denied the motion, stating that it saw “no possible prejudice to the defendant.” App. to Pet. for Cert. 74a. Musladin appealed his conviction to the California Court of Appeal in 1997. He argued that the buttons deprived him of his Fourteenth Amendment and Sixth Amendment rights. At the outset of its analysis, the Court of Appeal stated that Musladin had to show actual or inherent prejudice to succeed on his claim and cited Flynn, supra, at 570, as providing the test for inherent prejudice. The Court of Appeal, quoting part of Flynn’s test, made clear that it “consider[ed] the wearing of photographs of victims in a courtroom to be an ‘impermissible factor coming into play,’ the practice of which should be discouraged.” App. to Pet. for Cert. 75a (quoting Flynn, supra, at 570). Nevertheless, the court concluded, again quoting Flynn, supra, at 571, that the buttons had not “branded defendant ‘with an unmistakable mark of guilt’ in the eyes of the jurors” because “[t]he simple photograph of Tom Studer was unlikely to have been taken as a sign of anything other than the normal grief occasioned by the loss of [a] family member.” App. to Pet. for Cert. 75a. At the conclusion of the state appellate process, Musladin filed an application for writ of habeas corpus in federal district court pursuant to §2254. In his application, Musladin argued that the buttons were inherently prejudicial and that the California Court of Appeal erred by holding that the Studers’ wearing of the buttons did not deprive him of a fair trial. The District Court denied habeas relief but granted a certificate of appealability on the buttons issue. The Court of Appeals for the Ninth Circuit reversed and remanded for issuance of the writ, finding that under §2254 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.” §2254(d)(1). According to the Court of Appeals, this Court’s decisions in Williams and Flynn clearly established a rule of federal law applicable to Musladin’s case. Musladin v. Lamarque, 427 F. 3d 653, 656–658 (2005). Specifically, the Court of Appeals cited its own precedent in support of its conclusion that Williams and Flynn clearly established the test for inherent prejudice applicable to spectators’ courtroom conduct. 427 F. 3d, at 657–658 (citing Norris v. Risley, 918 F. 2d 828 (CA9 1990)). The Court of Appeals held that the state court’s application of a test for inherent prejudice that differed from the one stated in Williams and Flynn “was contrary to clearly established federal law and constituted an unreasonable application of that law.” 427 F. 3d, at 659–660. The Court of Appeals denied rehearing en banc. 427 F. 3d 647 (2005). We granted certiorari, 547 U. S. ___ (2006), and now vacate. II Under the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1219: “(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— “(1) resulted in a decision that 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). In Williams v. Taylor, 529 U. S. 362 (2000), we explained that “clearly established Federal law” in §2254(d)(1) “refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision.” Id., at 412. Therefore, federal habeas relief may be granted here if the California Court of Appeal’s decision was contrary to or involved an unreasonable application of this Court’s applicable holdings. A In Estelle v. Williams and Flynn, this Court addressed the effect of courtroom practices on defendants’ fair-trial rights. In Williams, the Court considered “whether an accused who is compelled to wear identifiable prison clothing at his trial by a jury is denied due process or equal protection of the laws.” 425 U. S., at 502. The Court stated that “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes,” id., at 512, but held that the defendant in that case had waived any objection to being tried in prison clothes by failing to object at trial, id., at 512–513. In Flynn, the Court addressed whether seating “four uniformed state troopers” in the row of spectators’ seats immediately behind the defendant at trial denied the defendant his right to a fair trial. 475 U. S., at 562. The Court held that the presence of the troopers was not so inherently prejudicial that it denied the defendant a fair trial. Id., at 571. In reaching that holding, the Court stated that “the question must be … whether ‘an unacceptable risk is presented of impermissible factors coming into play.’ ” Id., at 570 (quoting Williams, supra, at 505). Both Williams and Flynn dealt with government-sponsored practices: In Williams, the State compelled the defendant to stand trial in prison clothes, and in Flynn, the State seated the troopers immediately behind the defendant. Moreover, in both cases, this Court noted that some practices are so inherently prejudicial that they must be justified by an “essential state” policy or interest. Williams, supra, at 505 (concluding that the practice “further[ed] no essential state policy”); Flynn, supra, at 568–569 (holding that the practice was not of the sort that had to be justified by an “essential state interest”). B In contrast to state-sponsored courtroom practices, the effect on a defendant’s fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.[Footnote 2] And although 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. Reflecting the lack of guidance from this Court, lower courts have diverged widely in their treatment of defendants’ spectator-conduct claims. Some courts have applied Williams and Flynn to spectators’ conduct. Norris v. Risley, 918 F. 2d, at 830–831 (applying Williams and Flynn to hold spectators’ buttons worn during a trial deprived the defendant of a fair trial); In re Woods, 154 Wash. 2d 400, 416–418, 114 P. 3d 607, 616–617 (2005) (en banc) (applying Flynn but concluding that ribbons worn by spectators did not prejudice the defendant). Other courts have declined to extend Williams and Flynn to spectators’ conduct. Billings v. Polk, 441 F. 3d 238, 246–247 (CA4 2006) (“These precedents do not clearly establish that a defendant’s right to a fair jury trial is violated whenever an article of clothing worn at trial arguably conveys a message about the matter before the jury”); Davis v. State, No. 07–03–0457–CR, 2006 WL 1211091, *6–7 (Tex. App., May 3, 2006) (“Appellant does not cite any authority holding the display of this type of item by spectators creates inherent prejudice”). Other courts have distinguished Flynn on the facts. Pachl v. Zenon, 145 Ore. App. 350, 360, n. 1, 929 P. 2d 1088, 1093–1094, n. 1 (1996) (in banc). And still other courts have ruled on spectator-conduct claims without relying on, discussing, or distinguishing Williams or Flynn. Buckner v. State, 714 So. 2d 384, 388–389 (Fla. 1998) (per curiam); State v. Speed, 265 Kan. 26, 47–48, 961 P. 2d 13, 29–30 (1998); Nguyen v. State, 977 S. W. 2d 450, 457 (Tex. App. 1998); Kenyon v. State, 58 Ark. App. 24, 33–35, 946 S. W. 2d 705, 710–711 (1997); State v. Nelson, 96–0883, pp. 9–10 (La. App. 12/17/97), 705 So. 2d 758, 763. Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct of the kind involved here, it cannot be said that the state court “unreasonabl[y] appli[ed] clearly established Federal law.” §2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to or an unreasonable application of clearly established federal law. III The Court of Appeals improperly concluded that the California Court of Appeal’s decision was contrary to or an unreasonable application of clearly established federal law as determined by this Court. For these reasons, 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. Footnote 1 The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them. Footnote 2 This Court has considered cases in which the proceedings were a sham or were mob dominated. See Moore v. Dempsey, 261 U. S. 86, 91 (1923) (describing allegations that “the whole proceeding [was] a mask—that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong”); Frank v. Mangum, 237 U. S. 309, 324–325 (1915) (“[T]he disorder in and about the court-room during the trial and up to and at the reception of the verdict amounted to mob domination, that not only the jury but the presiding judge succumbed to it”).
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551.US.264
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Respondent investors filed suit, alleging that petitioner investment banks, acting as underwriters, violated antitrust laws when they formed syndicates to help execute initial public offerings (IPOs) for several hundred technology-related companies. Respondents claim that the underwriters unlawfully agreed that they would not sell newly issued securities to a buyer unless the buyer committed (1) to buy additional shares of that security later at escalating prices (known as “laddering”), (2) to pay unusually high commissions on subsequent security purchases from the underwriters, or (3) to purchase from the underwriters other less desirable securities (known as “tying”). The underwriters moved to dismiss, claiming that federal securities law impliedly precludes application of antitrust laws to the conduct in question. The District Court dismissed the complaints, but the Second Circuit reversed. Held: The securities law implicitly precludes the application of the antitrust laws to the conduct alleged in this case. Pp. 4–20. (a) Where regulatory statutes are silent in respect to antitrust, courts must determine whether, and in what respects, they implicitly preclude the antitrust laws’ application. Taken together, Silver v. New York Stock Exchange, 373 U. S. 341; Gordon v. New York Stock Exchange, Inc., 422 U. S. 659; and United States v. National Assn. of Securities Dealers, Inc., 422 U. S. 694 (NASD) make clear that a court deciding this preclusion issue is deciding whether, given context and likely consequences, there is a “clear repugnancy” between the securities law and the antitrust complaint, i.e., whether the two are “clearly incompatible.” Moreover, Gordon and NASD, in finding sufficient incompatibility to warrant an implication of preclusion, treated as critical: (1) the existence of regulatory authority under the securities law to supervise the activities in question; (2) evidence that the responsible regulatory entities exercise that authority; and (3) a resulting risk that the securities and antitrust laws, if both applicable, would produce conflicting guidance, requirements, duties, privileges, or standards of conduct. In addition, (4) in Gordon and NASD the possible conflict affected practices that lie squarely within an area of financial market activity that securities law seeks to regulate. Pp. 4–10. (b) Several considerations—the underwriters’ efforts jointly to promote and sell newly issued securities is central to the proper functioning of well-regulated capital markets; the law grants the SEC authority to supervise such activities; and the SEC has continuously exercised its legal authority to regulate this type of conduct—show that the first, second, and fourth conditions are satisfied in this case. This leaves the third condition: whether there is a conflict rising to the level of incompatibility. Pp. 10–12. (c) The complaints here can be read as attacking the manner in which the underwriters jointly seek to collect “excessive” commissions through the practices of laddering, tying, and collecting excessive commissions, which according to respondents the SEC itself has already disapproved and, in all likelihood, will not approve in the foreseeable future. Nonetheless, certain considerations, taken together, lead to the conclusion that securities law and antitrust law are clearly incompatible in this context. Pp. 12–19. (1) First, to permit antitrust actions such as this threatens serious securities-related harm. For one thing, a fine, complex, detailed line separates activity that the SEC permits or encourages from activity that it forbids. And the SEC has the expertise to distinguish what is forbidden from what is allowed. For another thing, reasonable but contradictory inferences may be drawn from overlapping evidence that shows both unlawful antitrust activity and lawful securities marketing activity. Further, there is a serious risk that antitrust courts, with different nonexpert judges and different nonexpert juries, will produce inconsistent results. Together these factors mean there is no practical way to confine antitrust suits so that they challenge only the kind of activity the investors seek to target, which is presently unlawful and will likely remain unlawful under the securities law. Rather, these considerations suggest that antitrust courts are likely to make unusually serious mistakes in this respect. And that threat means that underwriters must act to avoid not simply conduct that the securities law forbids, but also joint conduct that the securities law permits or encourages. Thus, allowing an antitrust lawsuit would threaten serious harm to the efficient functioning of the securities market. Pp. 14–17. (2) Second, any enforcement-related need for an antitrust lawsuit is unusually small. For one thing, the SEC actively enforces the rules and regulations that forbid the conduct in question. For another, investors harmed by underwriters’ unlawful practices may sue and obtain damages under the securities law. Finally, the fact that the SEC is itself required to take account of competitive considerations when it creates securities-related policy and embodies it in rules and regulations makes it somewhat less necessary to rely on antitrust actions to address anticompetitive behavior. Pp. 17–18. (3) In sum, an antitrust action in this context is accompanied by a substantial risk of injury to the securities markets and by a diminished need for antitrust enforcement to address anticompetitive conduct. Together these considerations indicate a serious conflict between application of the antitrust laws and proper enforcement of the securities law. The Solicitor General’s proposal to avoid this conflict does not convincingly address these concerns. Pp. 18–19. 426 F. 3d 130, reversed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Souter, Ginsburg, and Alito, JJ., joined. Stevens, J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion. Kennedy, J., took no part in the consideration or decision of the case.
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A group of buyers of newly issued securities have filed an antitrust lawsuit against underwriting firms that market and distribute those issues. The buyers claim that the underwriters unlawfully agreed with one another that they would not sell shares of a popular new issue to a buyer unless that buyer committed (1) to buy additional shares of that security later at escalating prices (a practice called “laddering”), (2) to pay unusually high commissions on subsequent security purchases from the underwriters, or (3) to purchase from the underwriters other less desirable securities (a practice called “tying”). The question before us is whether there is a “ ‘plain repugnancy’ ” between these antitrust claims and the federal securities law. See Gordon v. New York Stock Exchange, Inc., 422. U. S. 659, 682 (1975) (quoting United States v. Philadelphia Nat. Bank, 374 U. S. 321, 350–351 (1963)). We conclude that there is. Consequently we must interpret the securities laws as implicitly precluding the application of the antitrust laws to the conduct alleged in this case. See 422 U. S., at 682, 689, 691; see also United States v. National Assn. of Securities Dealers, Inc., 422 U. S. 694 (1975) (NASD); Silver v. New York Stock Exchange, 373 U. S. 341 (1963). I A The underwriting practices at issue take place during the course of an initial public offering (IPO) of shares in a company. An IPO presents an opportunity to raise capital for a new enterprise by selling shares to the investing public. A group of underwriters will typically form a syndicate to help market the shares. The syndicate will investigate and estimate likely market demand for the shares at various prices. It will then recommend to the firm a price and the number of shares it believes the firm should offer. Ultimately, the syndicate will promise to buy from the firm all the newly issued shares on a specified date at a fixed, agreed-upon price, which price the syndicate will then charge investors when it resells the shares. When the syndicate buys the shares from the issuing firm, however, the firm gives the syndicate a price discount, which amounts to the syndicate’s commission. See generally L. Loss & J. Seligman, Fundamentals of Securities Regulation 66–72 (4th ed. 2001). At the heart of the syndicate’s IPO marketing activity lie its efforts to determine suitable initial share prices and quantities. At first, the syndicate makes a preliminary estimate that it submits in a registration statement to the Securities and Exchange Commission (SEC). It then conducts a “road show” during which syndicate underwriters and representatives of the offering firm meet potential investors and engage in a process that the industry calls “book building.” During this time, the underwriters and firm representatives present information to investors about the company and the stock. And they attempt to gauge the strength of the investors’ interest in purchasing the stock. For this purpose, underwriters might well ask the investors how their interest would vary depending upon price and the number of shares that are offered. They will learn, among other things, which investors might buy shares, in what quantities, at what prices, and for how long each is likely to hold purchased shares before selling them to others. On the basis of this kind of information, the members of the underwriting syndicate work out final arrangements with the issuing firm, fixing the price per share and specifying the number of shares for which the underwriters will be jointly responsible. As we have said, after buying the shares at a discounted price, the syndicate resells the shares to investors at the fixed price, in effect earning its commission in the process. B In January 2002, respondents, a group of 60 investors, filed two antitrust class-action lawsuits against the petitioners, 10 leading investment banks. They sought relief under §1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. §1; §2(c) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1527, 15 U. S. C. §13(c); and state antitrust laws. App. 1, 14. The investors stated that between March 1997 and December 2000 the banks had acted as underwriters, forming syndicates that helped execute the IPOs of several hundred technology-related companies. Id., at 22. Respondents’ antitrust complaints allege that the underwriters “abused the . . . practice of combining into underwriting syndicates” by agreeing among themselves to impose harmful conditions upon potential investors—conditions that the investors apparently were willing to accept in order to obtain an allocation of new shares that were in high demand. Id., at 12. These conditions, according to respondents, consist of a requirement that the investors pay “additional anticompetitive charges” over and above the agreed-upon IPO share price plus underwriting commission. In particular, these additional charges took the form of (1) investor promises “to place bids . . . in the aftermarket at prices above the IPO price” (i.e., “laddering” agreements); (2) investor “commitments to purchase other, less attractive securities” (i.e., “tying” arrangements); and (3) investor payment of “non-competitively determined” (i.e., excessive) “commissions,” including the “purchas[e] of an issuer’s shares in follow-up or ‘secondary’ public offerings (for which the underwriters would earn underwriting discounts).” Id., at 12–13. The complaint added that the underwriters’ agreement to engage in some or all of these practices artificially inflated the share prices of the securities in question. Id., at 32. The underwriters moved to dismiss the investors’ complaints on the ground that federal securities law impliedly precludes application of antitrust laws to the conduct in question. (The antitrust laws at issue include the commercial bribery provisions of the Robinson-Patman Act.) The District Court agreed with petitioners and dismissed the complaints against them. See In re Initial Public Offering Antitrust Litigation, 287 F. Supp. 2d 497, 524–525 (SDNY 2003) (IPO Antitrust). The Court of Appeals for the Second Circuit reversed, however, and reinstated the complaints. 426 F. 3d 130, 170, 172 (2005). We granted the underwriters’ petition for certiorari. And we now reverse the Court of Appeals. II A Sometimes regulatory statutes explicitly state whether they preclude application of the antitrust laws. Compare, e.g., Webb-Pomerene Act, 15 U. S. C. §62 (expressly providing antitrust immunity) with §601(b)(1) of the Telecommunications Act of 1996, 47 U. S. C. §152 (stating that antitrust laws remain applicable). See also Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U. S. 398, 406–407 (2004) (analyzing the antitrust saving clause of the Telecommunications Act). Where regulatory statutes are silent in respect to antitrust, however, courts must determine whether, and in what respects, they implicitly preclude application of the antitrust laws. Those determinations may vary from statute to statute, depending upon the relation between the antitrust laws and the regulatory program set forth in the particular statute, and the relation of the specific conduct at issue to both sets of laws. Compare Gordon, 422 U. S., at 689 (finding implied preclusion of antitrust laws); and NASD, 422 U. S., at 729–730 (same), with Otter Tail Power Co. v. United States, 410 U. S. 366, 374–375 (1973) (finding no implied immunity); Philadelphia Nat. Bank, 374 U. S., at 352 (same); and Silver, 373 U. S., at 360 (same). See also Phonotele, Inc. v. American Tel. & Tel. Co., 664 F. 2d 716, 727 (CA9 1981). Three decisions from this Court specifically address the relation of securities law to antitrust law. In Silver the Court considered a dealer’s claim that, by expelling him from the New York Stock Exchange, the Exchange had violated the antitrust prohibition against group “boycott[s].” 373 U. S., at 347. The Court wrote that, where possible, courts should “reconcil[e] the operation of both [i.e., antitrust and securities] statutory schemes . . . rather than holding one completely ousted.” Id., at 357. It also set forth a standard, namely that “[r]epeal of the antitrust laws is to be regarded as implied only if necessary to make the Securities Exchange Act work, and even then only to the minimum extent necessary.” Ibid. And it held that the securities law did not preclude application of the antitrust laws to the claimed boycott insofar as the Exchange denied the expelled dealer a right to fair procedures. Id., at 359–360. In reaching this conclusion, the Court noted that the SEC lacked jurisdiction under the securities law “to review particular instances of enforcement of exchange rules”; that “nothing [was] built into the regulatory scheme which performs the antitrust function of insuring” that rules that injure competition are nonetheless “justified as furthering” legitimate regulatory “ends”; that the expulsion “would clearly” violate “the Sherman Act unless justified by reference to the purposes of the Securities Exchange Act”; and that it could find no such justifying purpose where the Exchange took “anticompetitive collective action . . . without according fair procedures.” Id., at 357–358, 364 (emphasis added). In Gordon the Court considered an antitrust complaint that essentially alleged “price fixing” among stockbrokers. It charged that members of the New York Stock Exchange had agreed to fix their commissions on sales under $500,000. And it sought damages and an injunction forbidding future agreements. 422 U. S., at 661, and n. 3. The lawsuit was filed at a time when regulatory attitudes toward fixed stockbroker commissions were changing. The fixed commissions challenged in the complaint were applied during a period when the SEC approved of the practice of fixing broker-commission rates. But Congress and the SEC had both subsequently disapproved for the future the fixing of some of those rates. See id., at 690–691. In deciding whether antitrust liability could lie, the Court repeated Silver’s general standard in somewhat different terms: It said that an “implied repeal” of the antitrust laws would be found only “where there is a ‘plain repugnancy between the antitrust and regulatory provisions.’ ” 422 U. S., at 682 (quoting Philadelphia Nat. Bank, supra, at 350–351). It then held that the securities laws impliedly precluded application of the antitrust laws in the case at hand. The Court rested this conclusion on three sets of considerations. For one thing, the securities law “gave the SEC direct regulatory power over exchange rules and practices with respect to the fixing of reasonable rates of commission.” 422 U. S., at 685 (internal quotation marks omitted). For another, the SEC had “taken an active role in review of proposed rate changes during the last 15 years,” and had engaged in “continuing activity” in respect to the regulation of commission rates. Ibid. Finally, without antitrust immunity, “the exchanges and their members” would be subject to “conflicting standards.” Id., at 689. This last consideration—the conflict—was complicated due to Congress’, and the agency’s, changing views about the validity of fixed commissions. As far as the past fixing of rates was concerned, the conflict was clear: The antitrust law had forbidden the very thing that the securities law had then permitted, namely an anticompetitive rate setting process. In respect to the future, however, the conflict was less apparent. That was because the SEC’s new (congressionally authorized) prohibition of (certain) fixed rates would take effect in the near-term future. And after that time the SEC and the antitrust law would both likely prohibit some of the ratefixing to which the plaintiff’s injunction would likely apply. See id., at 690–691. Despite the likely compatibility of the laws in the future, the Court nonetheless expressly found conflict. The conflict arose from the fact that the law permitted the SEC to supervise the competitive setting of rates and to “reintroduc[e] . . . fixed rates,” id., at 691 (emphasis added), under certain conditions. The Court consequently wrote that “failure to imply repeal would render nugatory the legislative provision for regulatory agency supervision of exchange commission rates.” Ibid. The upshot is that, in light of potential future conflict, the Court found that the securities law precluded antitrust liability even in respect to a practice that both antitrust law and securities law might forbid. In NASD the Court considered a Department of Justice antitrust complaint claiming that mutual fund companies had agreed with securities broker-dealers (1) to fix “resale” prices, i.e., the prices at which a broker-dealer would sell a mutual fund’s shares to an investor or buy mutual fund shares from a fund investor (who wished to redeem the shares); (2) to fix other terms of sale including those related to when, how, to whom, and from whom the broker-dealers might sell and buy mutual fund shares; and (3) to forbid broker-dealers from freely selling to, and buying shares from, one another. See 422 U. S., at 700–703. The Court again found “clear repugnancy,” and it held that the securities law, by implication, precluded all parts of the antitrust claim. Id., at 719. In reaching this conclusion, the Court found that antitrust law (e.g., forbidding resale price maintenance) and securities law (e.g., permitting resale price maintenance) were in conflict. In deciding that the latter trumped the former, the Court relied upon the same kinds of considerations it found determinative in Gordon. In respect to the last set of allegations (restricting a free market in mutual fund shares among brokers), the Court said that (1) the relevant securities law “enables [the SEC] to monitor the activities questioned”; (2) “the history of Commission regulations suggests no laxity in the exercise of this authority”; and hence (3) allowing an antitrust suit to proceed that is “so directly related to the SEC’s responsibilities” would present “a substantial danger that [broker-dealers and other defendants] would be subjected to duplicative and inconsistent standards.” See NASD, 422 U. S., at 734–735. As to the other practices alleged in the complaint (concerning, e.g., resale price maintenance), the Court emphasized that (1) the securities law “vested in the SEC final authority to determine whether and to what extent” the relevant practices “should be tolerated,” id., at 729; (2) although the SEC has not actively supervised the relevant practices, that is only because the statute “reflects a clear congressional determination that, subject to Commission oversight, mutual funds should be allowed to retain the initiative in dealing with the potentially adverse effects of disruptive trading practices,” id., at 727; and (3) the SEC has supervised the funds insofar as its “acceptance of fund-initiated restrictions for more than three decades . . . manifests an informed administrative judgment that the contractual restrictions . . . were appropriate means for combating the problems of the industry,” id., at 728. The Court added that, in these respects, the SEC had engaged in “precisely the kind of administrative oversight of private practices that Congress contemplated.” Ibid. As an initial matter these cases make clear that Justice Thomas is wrong to regard §§77p(a) and 78bb(a) as saving clauses so broad as to preserve all antitrust actions. See post, p. ___ (dissenting opinion). The United States advanced the same argument in Gordon. See Brief for United States as Amicus Curiae in Gordon v. New York Stock Exchange, Inc., O. T. 1974, No. 74–304, pp. 8, 42. And the Court, in finding immunity, necessarily rejected it. See also NASD, supra, at 694 (same holding); Herman & MacLean v. Huddleston, 459 U. S. 375, 383 (1983) (finding saving clause applicable to overlap between securities laws where that “overlap [was] neither unusual nor unfortunate” (internal quotation marks omitted)). Although one party has made the argument in this Court, it was not presented in the courts below. And we shall not reexamine it. This Court’s prior decisions also make clear that, when a court decides whether securities law precludes antitrust law, it is deciding whether, given context and likely consequences, there is a “clear repugnancy” between the securities law and the antitrust complaint—or as we shall subsequently describe the matter, whether the two are “clearly incompatible.” Moreover, Gordon and NASD, in finding sufficient incompatibility to warrant an implication of preclusion, have treated the following factors as critical: (1) the existence of regulatory authority under the securities law to supervise the activities in question; (2) evidence that the responsible regulatory entities exercise that authority; and (3) a resulting risk that the securities and antitrust laws, if both applicable, would produce conflicting guidance, requirements, duties, privileges, or standards of conduct. We also note (4) that in Gordon and NASD the possible conflict affected practices that lie squarely within an area of financial market activity that the securities law seeks to regulate. B These principles, applied to the complaints before us, considerably narrow our legal task. For the parties cannot reasonably dispute the existence here of several of the conditions that this Court previously regarded as crucial to finding that the securities law impliedly precludes the application of the antitrust laws. First, the activities in question here—the underwriters’ efforts jointly to promote and to sell newly issued securities—is central to the proper functioning of well-regulated capital markets. The IPO process supports new firms that seek to raise capital; it helps to spread ownership of those firms broadly among investors; it directs capital flows in ways that better correspond to the public’s demand for goods and services. Moreover, financial experts, including the securities regulators, consider the general kind of joint underwriting activity at issue in this case, including road shows and book-building efforts essential to the successful marketing of an IPO. See Memorandum Amicus Curiae of SEC in IPO Antitrust, Case No. 01 CIV 2014 (WHP) (SDNY), pp. 15, 39–40, App. D to Pet. for Cert. 124a, 138a, 155a–157a (hereinafter Brief for SEC). Thus, the antitrust complaints before us concern practices that lie at the very heart of the securities marketing enterprise. Second, the law grants the SEC authority to supervise all of the activities here in question. Indeed, the SEC possesses considerable power to forbid, permit, encourage, discourage, tolerate, limit, and otherwise regulate virtually every aspect of the practices in which underwriters engage. See, e.g., 15 U. S. C. §§77b(a)(3), 77j, 77z–2 (granting SEC power to regulate the process of book-building, solicitations of “indications of interest,” and communications between underwriting participants and their customers, including those that occur during road shows); §78o(c)(2)(D) (granting SEC power to define and prevent through rules and regulations acts and practices that are fraudulent, deceptive, or manipulative); §78i(a)(6) (similar); §78j(b) (similar). Private individuals who suffer harm as a result of a violation of pertinent statutes and regulations may also recover damages. See §§78bb, 78u–4, 77k. Third, the SEC has continuously exercised its legal authority to regulate conduct of the general kind now at issue. It has defined in detail, for example, what underwriters may and may not do and say during their road shows. Compare, e.g., Guidance Regarding Prohibited Conduct In Connection with IPO Allocations, 70 Fed. Reg. 19672 (2005), with Regulation M, 17 CFR §§242.100–242.105 (2006). It has brought actions against underwriters who have violated these SEC regulations. See Brief for SEC 13–14, App. D to Pet. for Cert. 136a–138a. And private litigants, too, have brought securities actions complaining of conduct virtually identical to the conduct at issue here; and they have obtained damages. See, e.g., In re Initial Pub. Offering Securities Litigation, 241 F. Supp. 2d 281 (SDNY 2003). The preceding considerations show that the first condition (legal regulatory authority), the second condition (exercise of that authority), and the fourth condition (heartland securities activity) that were present in Gordon and NASD are satisfied in this case as well. Unlike Silver, there is here no question of the existence of appropriate regulatory authority, nor is there doubt as to whether the regulators have exercised that authority. Rather, the question before us concerns the third condition: Is there a conflict that rises to the level of incompatibility? Is an antitrust suit such as this likely to prove practically incompatible with the SEC’s administration of the Nation’s securities laws? III A Given the SEC’s comprehensive authority to regulate IPO underwriting syndicates, its active and ongoing exercise of that authority, and the undisputed need for joint IPO underwriter activity, we do not read the complaints as attacking the bare existence of IPO underwriting syndicates or any of the joint activity that the SEC considers a necessary component of IPO-related syndicate activity. See Brief for SEC 15, 39–40, App. D to Pet. for Cert. 138a, 155a–157a. See also IPO Antitrust, 287 F. Supp. 2d, at 507 (discussing the history of syndicate marketing of IPOs); App. 12 (complaint attacks underwriters “abuse” of “the preexisting practice of combining into underwriting syndicates” (emphasis added)); H. R. Rep. No. 1383, 73d Cong., 2d Sess., 6–7 (1934); S. Rep. No. 792, 73d Cong., 2d Sess., 5 (1934) (law must give to securities agencies freedom to regulate agreements among syndicate members). Nor do we understand the complaints as questioning underwriter agreements to fix the levels of their commissions, whether or not the resulting price is “excessive.” See Gordon, 422 U. S., at 688–689 (securities law conflicts with, and therefore precludes, antitrust attack on the fixing of commissions where SEC has not approved, but later might approve, the practice). We nonetheless can read the complaints as attacking the manner in which the underwriters jointly seek to collect “excessive” commissions. The complaints attack underwriter efforts to collect commissions through certain practices (i.e., laddering, tying, collecting excessive commissions in the form of later sales of the issued shares), which according to respondents the SEC itself has already disapproved and, in all likelihood, will not approve in the foreseeable future. In respect to this set of claims, they contend that there is no possible “conflict” since both securities law and antitrust law aim to prohibit the same undesirable activity. Without a conflict, they add, there is no “repugnance” or “incompatibility,” and this Court may not imply that securities law precludes an antitrust suit. B We accept the premises of respondents’ argument—that the SEC has full regulatory authority over these practices, that it has actively exercised that authority, but that the SEC has disapproved (and, for argument’s sake, we assume that it will continue to disapprove) the conduct that the antitrust complaints attack. Nonetheless, we cannot accept respondents’ conclusion. Rather, several considerations taken together lead us to find that, even on these prorespondent assumptions, securities law and antitrust law are clearly incompatible. First, to permit antitrust actions such as the present one still threatens serious securities-related harm. For one thing, an unusually serious legal line-drawing problem remains unabated. In the present context only a fine, complex, detailed line separates activity that the SEC permits or encourages (for which respondents must concede antitrust immunity) from activity that the SEC must (and inevitably will) forbid (and which, on respondents’ theory, should be open to antitrust attack). For example, in respect to “laddering” the SEC forbids an underwriter to “solicit customers prior to the completion of the distribution regarding whether and at what price and in what quantity they intend to place immediate aftermarket orders for IPO stock,” 70 Fed. Reg. 19675–19676 (emphasis deleted); 17 CFR §§242.100–242.105. But at the same time the SEC permits, indeed encourages, underwriters (as part of the “book building” process) to “inquir[e] as to a customer’s desired future position in the longer term (for example, three to six months), and the price or prices at which the customer might accumulate that position without reference to immediate aftermarket activity.” 70 Fed. Reg. 19676. It will often be difficult for someone who is not familiar with accepted syndicate practices to determine with confidence whether an underwriter has insisted that an investor buy more shares in the immediate aftermarket (forbidden), or has simply allocated more shares to an investor willing to purchase additional shares of that issue in the long run (permitted). And who but a securities expert could say whether the present SEC rules set forth a virtually permanent line, unlikely to change in ways that would permit the sorts of “laddering-like” conduct that it now seems to forbid? Cf. Gordon, supra, at 690–691. Similarly, in respect to “tying” and other efforts to obtain an increased commission from future sales, the SEC has sought to prohibit an underwriter “from demanding . . . an offer from their customers of any payment or other consideration [such as the purchase of a different security] in addition to the security’s stated consideration.” 69 Fed. Reg. 75785 (2004). But the SEC would permit a firm to “allocat[e] IPO shares to a customer because the customer has separately retained the firm for other services, when the customer has not paid excessive compensation in relation to those services.” Ibid., n. 108. The National Association of Securities Dealers (NASD), over which the SEC exercises supervisory authority, has also proposed a rule that would prohibit a member underwriter from “offering or threatening to withhold” IPO shares “as consideration or inducement for the receipt of compensation that is excessive in relation to the services provided.” Id., at 77810. The NASD would allow, however, a customer legitimately to compete for IPO shares by increasing the level and quantity of compensation it pays to the underwriter. See Ibid. (describing NASD Proposed Rule 2712(a)). Under these standards, to distinguish what is forbidden from what is allowed requires an understanding of just when, in relation to services provided, a commission is “excessive,” indeed, so “excessive” that it will remain permanently forbidden, see Gordon, 422 U. S., at 690–691. And who but the SEC itself could do so with confidence? For another thing, evidence tending to show unlawful antitrust activity and evidence tending to show lawful securities marketing activity may overlap, or prove identical. Consider, for instance, a conversation between an underwriter and an investor about how long an investor intends to hold the new shares (and at what price), say a conversation that elicits comments concerning both the investor’s short and longer term plans. That exchange might, as a plaintiff sees it, provide evidence of an underwriter’s insistence upon “laddering” or, as a defendant sees it, provide evidence of a lawful effort to allocate shares to those who will hold them for a longer time. See Brief for United States as Amicus Curiae 27. Similarly, the same somewhat ambiguous conversation might help to establish an effort to collect an unlawfully high commission through atypically high commissions on later sales or through the sales of less popular stocks. Or it might prove only that the underwriter allocates more popular shares to investors who will help stabilize the aftermarket share price. See, e.g., Department of Enforcement, Disciplinary Proceeding No. CAF030014, pp. 12–13 (NASD Office of Hearing Officers, Mar. 3, 2006). Further, antitrust plaintiffs may bring lawsuits throughout the Nation in dozens of different courts with different nonexpert judges and different nonexpert juries. In light of the nuanced nature of the evidentiary evaluations necessary to separate the permissible from the impermissible, it will prove difficult for those many different courts to reach consistent results. And, given the fact-related nature of many such evaluations, it will also prove difficult to assure that the different courts evaluate similar fact patterns consistently. The result is an unusually high risk that different courts will evaluate similar factual circumstances differently. See Hovenkamp, Antitrust Violations in Securities Markets, 28 J. Corp. L. 607, 629 (2003) (“Once regulation of an industry is entrusted to jury trials, the outcomes of antitrust proceedings will be inconsistent with one another . . . ”). Now consider these factors together—the fine securities-related lines separating the permissible from the impermissible; the need for securities-related expertise (particularly to determine whether an SEC rule is likely permanent); the overlapping evidence from which reasonable but contradictory inferences may be drawn; and the risk of inconsistent court results. Together these factors mean there is no practical way to confine antitrust suits so that they challenge only activity of the kind the investors seek to target, activity that is presently unlawful and will likely remain unlawful under the securities law. Rather, these factors suggest that antitrust courts are likely to make unusually serious mistakes in this respect. And the threat of antitrust mistakes, i.e., results that stray outside the narrow bounds that plaintiffs seek to set, means that underwriters must act in ways that will avoid not simply conduct that the securities law forbids (and will likely continue to forbid), but also a wide range of joint conduct that the securities law permits or encourages (but which they fear could lead to an antitrust lawsuit and the risk of treble damages). And therein lies the problem. This kind of problem exists to some degree in respect to other antitrust lawsuits. But here the factors we have mentioned make mistakes unusually likely (a matter relevant to Congress’ determination of which institution should regulate a particular set of market activities). And the role that joint conduct plays in respect to the marketing of IPOs, along with the important role IPOs themselves play in relation to the effective functioning of capital markets, means that the securities-related costs of mistakes is unusually high. It is no wonder, then, that the SEC told the District Court (consistent with what the Government tells us here) that a “failure to hold that the alleged conduct was immunized would threaten to disrupt the full range of the Commission’s ability to exercise its regulatory authority,” adding that it would have a “chilling effect” on “lawful joint activities . . . of tremendous importance to the economy of the country.” Brief for SEC 40, App. D to Pet. for Cert. 157a. We believe it fair to conclude that, where conduct at the core of the marketing of new securities is at issue; where securities regulators proceed with great care to distinguish the encouraged and permissible from the forbidden; where the threat of antitrust lawsuits, through error and disincentive, could seriously alter underwriter conduct in undesirable ways, to allow an antitrust lawsuit would threaten serious harm to the efficient functioning of the securities markets. Second, any enforcement-related need for an antitrust lawsuit is unusually small. For one thing, the SEC actively enforces the rules and regulations that forbid the conduct in question. For another, as we have said, investors harmed by underwriters’ unlawful practices may bring lawsuits and obtain damages under the securities law. See supra, at 10–11. Finally, the SEC is itself required to take account of competitive considerations when it creates securities-related policy and embodies it in rules and regulations. And that fact makes it somewhat less necessary to rely upon antitrust actions to address anticompetitive behavior. See 15 U. S. C. §77b(b) (instructing the SEC to consider, “in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation”); §78w(a)(2) (the SEC “shall consider among other matters the impact any such rule or regulation would have on competition”); Trinko, 540 U. S., at 412 (“[T]he additional benefit to competition provided by antitrust enforcement will tend to be small” where other laws and regulatory structures are “designed to deter and remedy anticompetitive harm”). We also note that Congress, in an effort to weed out unmeritorious securities lawsuits, has recently tightened the procedural requirements that plaintiffs must satisfy when they file those suits. To permit an antitrust lawsuit risks circumventing these requirements by permitting plaintiffs to dress what is essentially a securities complaint in antitrust clothing. See generally Private Securities Litigation Reform Act of 1995, 109 Stat. 737; Securities Litigation Uniform Standards Act of 1998, 112 Stat. 3227. In sum, an antitrust action in this context is accompanied by a substantial risk of injury to the securities markets and by a diminished need for antitrust enforcement to address anticompetitive conduct. Together these considerations indicate a serious conflict between, on the one hand, application of the antitrust laws and, on the other, proper enforcement of the securities law. We are aware that the Solicitor General, while recognizing the conflict, suggests a procedural device that he believes will avoid it (in effect, a compromise between the differing positions that the SEC and Antitrust Division of the Department of Justice took in the courts below). Compare Brief for Dept. of Justice, Antitrust Division, as Amicus Curiae in Case No. 01 CIV 2014, p. 23 (seeking no preclusion of the antitrust laws), with Brief for SEC 39–40, App. D to Pet. for Cert. 155a–157a (seeking total preclusion of the antitrust laws). He asks us to remand this case to the District Court so that it can determine “whether respondents’ allegations of prohibited conduct can, as a practical matter, be separated from conduct that is permitted by the regulatory scheme,” and in doing so, the lower court should decide whether SEC-permitted and SEC-prohibited conduct are “inextricably intertwined.” See Brief for United States as Amicus Curiae 9. The Solicitor General fears that otherwise, we might read the law as totally precluding application of the antitrust law to underwriting syndicate behavior, even were underwriters, say, overtly to divide markets. The Solicitor General’s proposed disposition, however, does not convincingly address the concerns we have set forth here—the difficulty of drawing a complex, sinuous line separating securities-permitted from securities-forbidden conduct, the need for securities-related expertise to draw that line, the likelihood that litigating parties will depend upon the same evidence yet expect courts to draw different inferences from it, and the serious risk that antitrust courts will produce inconsistent results that, in turn, will overly deter syndicate practices important in the marketing of new issues. (We also note that market divisions appear to fall well outside the heartland of activities related to the underwriting process than the conduct before us here, and we express no view in respect to that kind of activity.) The upshot is that all four elements present in Gordon are present here: (1) an area of conduct squarely within the heartland of securities regulations; (2) clear and adequate SEC authority to regulate; (3) active and ongoing agency regulation; and (4) a serious conflict between the antitrust and regulatory regimes. We therefore conclude that the securities laws are “clearly incompatible” with the application of the antitrust laws in this context. The Second Circuit’s contrary judgment is Reversed. Justice Kennedy took no part in the consideration or decision of this case.
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549.US.270
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Petitioner Cunningham was tried and convicted of continuous sexual abuse of a child under 14. Under California’s determinate sentencing law (DSL), that offense is punishable by one of three precise terms of imprisonment: a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. The DSL obliged the trial judge to sentence Cunningham to the 12-year middle term unless the judge found one or more additional “circumstances in aggravation.” Court Rules adopted to implement the DSL define “circumstances in aggravation” as facts that justify the upper term. Those facts, the Rules provide, must be established by a preponderance of the evidence. Based on a post-trial sentencing hearing, the judge found by a preponderance of the evidence six aggravating facts, including the particular vulnerability of the victim, and one mitigating fact, that Cunningham had no record of prior criminal conduct. Concluding that the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to the upper term of 16 years. The California Court of Appeal affirmed. The State Supreme Court denied review, but in a decision published nine days earlier, People v. Black, 35 Cal 4th 1230, 113 P. 3d 534, that court held that the DSL survived Sixth Amendment inspection. Held: The DSL, by placing sentence-elevating factfinding within the judge’s province, violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. Pp. 8–22. (a) In Apprendi v. New Jersey, this Court held that, under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. See 530 U. S. 466, 490. The Court has applied the rule of Apprendi to facts subjecting a defendant to the death penalty, Ring v. Arizona, 536 U. S. 584, 602, 609, facts permitting a sentence in excess of the “standard range” under Washington’s Sentencing Reform Act (Reform Act), Blakely v. Washington, 542 U. S. 296, 304–305, and facts triggering a sentence range elevation under the then-mandatory Federal Sentencing Guidelines, United States v. Booker, 543 U. S. 220, 243–244. Blakely and Booker bear most closely on the question presented here. The maximum penalty for Blakely’s offense, under Washington’s Reform Act, was ten years’ imprisonment, but if no facts beyond those reflected in the jury’s verdict were found by the trial judge, Blakely could not receive a sentence above a standard range of 49 to 53 months. Blakely was sentenced to 90 months, more than three years above the standard range, based on the judge’s finding of deliberate cruelty. Applying Apprendi, this Court held the sentence unconstitutional. The State in Blakely endeavored to distinguish Apprendi, contending that Blakely’s sentence was within the judge’s discretion based solely on the guilty verdict. The Court dismissed that argument. Blakely could not have been sentenced above the standard range absent an additional fact. Consequently, that fact was subject to the Sixth Amendment’s jury-trial guarantee. It did not matter that Blakely’s sentence, though outside the standard range, was within the 10-year maximum. Because the judge could not have imposed a sentence outside the standard range without finding an additional fact, the top of that range—53 months, not 10 years—was the relevant statutory maximum. The Court also rejected the State’s arguments that Apprendi was satisfied because the Reform Act did not specify an exclusive catalog of facts on which a judge might base a departure from the standard range, and because it ultimately left the decision whether or not to depart to the judge’s discretion. Booker was sentenced under the Federal Sentencing Guidelines. The facts found by the jury yielded a base Guidelines range of 210 to 262 months’ imprisonment, a range the judge could not exceed without undertaking additional factfinding. The judge did so, making a finding that boosted Booker into a higher Guidelines range. This Court held Booker’s sentence impermissible under the Sixth Amendment. There was “no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in [Blakely].” 543 U. S., at 233. Both were “mandatory and impose[d] binding requirements on all sentencing judges.” Ibid. All Members of the Court agreed, however, that the Guidelines would not implicate the Sixth Amendment if they were advisory. Ibid. Facing the remedial question, the Court concluded that rendering the Guidelines advisory came closest to what Congress would have intended had it known that the Guidelines were vulnerable to a Sixth Amendment challenge. Under the advisory Guidelines system described in Booker, judges would no longer be confined to the sentencing range dictated by the Guidelines, but would be obliged to “take account” of that range along with the sentencing goals enumerated in the Sentencing Reform Act (SRA). Id., at 259, 264. In place of the SRA provision governing appellate review of sentences under the mandatory Guidelines scheme, the Court installed a “reasonableness” standard of review. Id., at 261. Pp. 8–15. (b) In all material respects, California’s DSL resembles the sentencing systems invalidated in Blakely and Booker. Following the reasoning in those cases, the middle term prescribed under California law, not the upper term, is the relevant statutory maximum. Because aggravating facts that authorize the upper term are found by the judge, and need only be established by a preponderance of the evidence, the DSL violates the rule of Apprendi. While “that should be the end of the matter,” Blakely, 542 U. S., at 313, in People v. Black, the California Supreme Court insisted that the DSL survives inspection under our precedents. The Black court reasoned that, given the ample discretion afforded trial judges to identify aggravating facts warranting an upper term sentence, the DSL did “not represent a legislative effort to shift the proof of particular facts from elements of a crime (to be proved to a jury) to sentencing factors (to be decided by a judge),” 35 Cal. 4th, at 1255–1256, 113 P. 3d, at 543–544. This Court cautioned in Blakely, however, that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in a particular case, does not shield a sentencing system from the force of this Court’s decisions. The Black court also urged that the DSL is not cause for concern because it reduced the penalties for most crimes over the prior indeterminate sentencing scheme; because the system is fair to defendants; and because the DSL requires statutory sentence enhancements (as distinguished from aggravators) to be charged in the indictment and proved to a jury beyond a reasonable doubt. The Black court’s examination, in short, satisfied it that California’s sentencing system does not implicate significantly the concerns underlying the Sixth Amendment’s jury-trial guarantee. This Court’s decisions, however, leave no room for such an examination. Asking whether a defendant’s basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, is the very inquiry Apprendi’s bright-line rule was designed to exclude. Ultimately, the Black court relied on an equation of California’s DSL to the post-Booker federal system. That attempted comparison is unavailing. The Booker Court held the Federal Guidelines incompatible with the Sixth Amendment because they were “mandatory and impose[d] binding requirements on all sentencing judges,” 543 U. S., at 233. To remedy the constitutional infirmity, the Court excised provisions that rendered the system mandatory, leaving the Guidelines in place as advisory only. The DSL, however, does not resemble the advisory system the Court in Booker had in view. Under California’s system, judges are not free to exercise their “discretion to select a specific sentence within a defined range.” Ibid. California’s Legislature has adopted sentencing triads, three fixed sentences with no ranges between them. Cunningham’s sentencing judge had no discretion to select a sentence within a range of 6 to 16 years, but had to impose 12 years, nothing less and nothing more, unless the judge found facts allowing a sentence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16 years, this Court’s decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies. The Black court attempted to rescue the DSL’s judicial factfinding authority by typing it a reasonableness constraint, equivalent to the constraint operative in the post-Booker federal system. Reasonableness, however, is not the touchstone of Sixth Amendment analysis. The reasonableness requirement Booker anticipated for the federal system operates within the constitutional constraints delineated in this Court’s precedent, not as a substitute for those constraints. Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment. Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering this Court’s Sixth Amendment case law toothless. Further elaboration here on the federal reasonableness standard is neither necessary nor proper. The Court has granted review in two cases—to be argued and decided later this Term—raising questions trained on that matter. Claiborne v. United States, No. 06–5618; Rita v. United States, No. 06–5754. Pp. 15–21. (c) As to the adjustment of California’s sentencing system in light of the Court’s ruling, “[t]he ball . . . lies in [California’s] court.” Booker, 543 U. S., at 265. Several States have modified their systems in the wake of Apprendi and Blakely to retain determinate sentencing, by calling upon the jury to find any fact necessary to the imposition of an elevated sentence. Other States have chosen to permit judges genuinely “to exercise broad discretion . . . within a statutory range,” which, “everyone agrees,” encounters no Sixth Amendment shoal. Id., at 233. California may follow the paths taken by its sister States or otherwise alter its system, so long as it observes Sixth Amendment limitations declared in this Court’s decisions. Pp. 21–22. Reversed in part and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Souter, and Thomas, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Breyer, J., joined. Alito, J., filed a dissenting opinion, in which Kennedy and Breyer, JJ., joined.
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California’s determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated “upper term” sentence. The facts so found are neither inherent in the jury’s verdict nor embraced by the defendant’s plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge’s province, violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does. As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U. S. 466 (2000); Ring v. Arizona, 536 U. S. 584 (2002); Blakely v. Washington, 542 U. S. 296 (2004); United States v. Booker, 543 U. S. 220 (2005). “[T]he relevant ‘statutory maximum,’ ” this Court has clarified, “is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely, 542 U. S., at 303–304 (emphasis in original). In petitioner’s case, the jury’s verdict alone limited the permissible sentence to 12 years. Additional factfinding by the trial judge, however, yielded an upper term sentence of 16 years. The California Court of Appeal affirmed the harsher sentence. We reverse that disposition because the four-year elevation based on judicial factfinding denied petitioner his right to a jury trial. I A Petitioner John Cunningham was tried and convicted of continuous sexual abuse of a child under the age of 14. Under the DSL, that offense is punishable by imprisonment for a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. Cal. Penal Code Ann. §288.5(a) (West 1999) (hereinafter Penal Code). As further explained below, see infra, at 4–7, the DSL obliged the trial judge to sentence Cunningham to the 12-year middle term unless the judge found one or more additional facts in aggravation. Based on a post-trial sentencing hearing, the trial judge found by a preponderance of the evidence six aggravating circumstances, among them, the particular vulnerability of Cunningham’s victim, and Cunningham’s violent conduct, which indicated a serious danger to the community. Tr. of Sentencing (Aug. 1, 2003), App. 22.[Footnote 1] In mitigation, the judge found one fact: Cunningham had no record of prior criminal conduct. Ibid. Concluding that the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to the upper term of 16 years. Id., at 23. A panel of the California Court of Appeal affirmed the conviction and sentence; one judge dissented in part, urging that this Court’s precedent precluded the judge-determined four-year increase in Cunningham’s sentence. No. A103501 (Apr. 18, 2005), App. 43–48; id., at 48–50 (Jones, J., concurring in part and dissenting in part).[Footnote 2] The California Supreme Court denied review. No. S133971 (June 29, 2005) (en banc), id., at 52. In a reasoned decision published nine days earlier, that court considered the question here presented and held that the DSL survived Sixth Amendment inspection. People v. Black, 35 Cal. 4th 1238, 113 P. 3d 534 (June 20, 2005). B Enacted in 1977, the DSL replaced an indeterminate sentencing regime in force in California for some 60 years. See id., at 1246, 113 P. 3d, at 537; Cassou & Taugher, Determinate Sentencing in California: The New Numbers Game, 9 Pac. L. J. 5, 6–22 (1978) (hereinafter Cassou & Taugher). Under the prior regime, courts imposed open-ended prison terms (often one year to life), and the parole board—the Adult Authority—determined the amount of time a felon would ultimately spend in prison. Black, 35 Cal. 4th, at 1246, 1256, 113 P. 3d, at 537, 544; In re Roberts, 36 Cal. 4th 575, 588, n. 6, 115 P. 3d 1121, 1129, n. 6 (2005); Cassou & Taugher 5–9. In contrast, the DSL fixed the terms of imprisonment for most offenses, and eliminated the possibility of early release on parole. See Penal Code §3000 et seq. (West Supp. 2006); 3 B. Witkin & N. Epstein, California Criminal Law §610, p. 809 (3d ed. 2000); Brief for Respondent 7.[Footnote 3] Through the DSL, California’s lawmakers aimed to promote uniform and proportionate punishment. Penal Code §1170(a)(1); Black, 35 Cal. 4th, at 1246, 113 P. 3d, at 537. For most offenses, including Cunningham’s, the DSL regime is implemented in the following manner. The statute defining the offense prescribes three precise terms of imprisonment—a lower, middle, and upper term sentence. E.g., Penal Code §288.5(a) (West 1999) (a person convicted of continuous sexual abuse of a child “shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years”). See also Black, 35 Cal. 4th, at 1247, 113 P. 3d, at 538. Penal Code §1170(b) (West Supp. 2006) controls the trial judge’s choice; it provides that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” “[C]ircumstances in aggravation or mitigation” are to be determined by the court after consideration of several items: the trial record; the probation officer’s report; statements in aggravation or mitigation submitted by the parties, the victim, or the victim’s family; “and any further evidence introduced at the sentencing hearing.” Ibid. The DSL directed the State’s Judicial Council[Footnote 4] to adopt Rules guiding the sentencing judge’s decision whether to “[i]mpose the lower or upper prison term.” Penal Code §1170.3(a)(2) (West 2004).[Footnote 5] Restating §1170(b), the Council’s Rules provide that “[t]he middle term shall be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” Rule 4.420(a). “Circumstances in aggravation,” as crisply defined by the Judicial Council, means “facts which justify the imposition of the upper prison term.” Rule 4.405(d) (emphasis added). Facts aggravating an offense, the Rules instruct, “shall be established by a preponderance of the evidence,” Rule 4.420(b),[Footnote 6] and must be “stated orally on the record.” Rule 4.420(e). The Rules provide a nonexhaustive list of aggravating circumstances, including “[f]acts relating to the crime,” Rule 4.421(a),[Footnote 7] “[f]acts relating to the defendant,” Rule 4.421(b),[Footnote 8] and “[a]ny other facts statutorily declared to be circumstances in aggravation,” Rule 4.421(c). Beyond the enumerated circumstances, “the judge is free to consider any ‘additional criteria reasonably related to the decision being made.’ ” Black, 35 Cal. 4th, at 1247, 113 P. 3d, at 538 (quoting Rule 4.408(a)). “A fact that is an element of the crime,” however, “shall not be used to impose the upper term.” Rule 4.420(d). In sum, California’s DSL, and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts—whether related to the offense or the offender—beyond the elements of the charged offense. Justice Alito maintains, however, that a circumstance in aggravation need not be a fact at all. In his view, a policy judgment, or even a judge’s “subjective belief” regarding the appropriate sentence, qualifies as an aggravating circumstance. Post, at 11–12 (dissenting opinion). California’s Rules, however, constantly refer to “facts.” As just noted, the Rules define “circumstances in aggravation” as “facts which justify the imposition of the upper prison term.” Rule 4.405(d) (emphasis added).[Footnote 9] And “circumstances in aggravation,” the Rules unambiguously declare, “shall be established by a preponderance of the evidence,” Rule 4.420(b), a clear factfinding directive to which there is no exception. See People v. Hall, 8 Cal. 4th 950, 957, 883 P. 2d 974, 978 (1994) (“Selection of the upper term is justified only if circumstances in aggravation are established by a preponderance of evidence . . . .” (emphasis added)). While the Rules list “[g]eneral objectives of sentencing,” Rule 4.410(a), nowhere are these objectives cast as “circumstances in aggravation” that alone authorize an upper term sentence. The Rules also state that “[t]he enumeration . . . of some criteria for the making of discretionary sentencing decisions does not prohibit the application of additional criteria reasonably related to the decision being made.” Rule 4.408(a). California courts have not read this language to unmoor “circumstances in aggravation” from any factfinding anchor. In line with the Rules, the California Supreme Court has repeatedly referred to circumstances in aggravation as facts. See, e.g., Black, 35 Cal. 4th, at 1256, 113 P. 3d, at 544 (“The Legislature did not identify all of the particular facts that could justify the upper term.” (emphasis added)); People v. Wiley, 9 Cal. 4th 580, 587, 889 P. 2d 541, 545 (1995) (“[T]rial courts are assigned the task of deciding whether to impose an upper or lower term of imprisonment based upon their determination whether there are circumstances in aggravation or mitigation of the crime, a determination that invariably requires numerous factual findings.” (emphasis added and internal quotation marks omitted)). It is unsurprising, then, that State’s counsel, at oral argument, acknowledged that he knew of no case in which a California trial judge had gone beyond the middle term based not on any fact the judge found, but solely on the basis of a policy judgment or subjective belief. See Tr. of Oral Arg. 49–50. Notably, the Penal Code permits elevation of a sentence above the upper term based on specified statutory enhancements relating to the defendant’s criminal history or circumstances of the crime. See, e.g., Penal Code §667 et seq. (West Supp. 2006); §12022 et seq. See also Black, 35 Cal. 4th, at 1257, 113 P. 3d, at 545. Unlike aggravating circumstances, statutory enhancements must be charged in the indictment, and the underlying facts must be proved to the jury beyond a reasonable doubt. Penal Code §1170.1(e); Black, 35 Cal. 4th, at 1257, 113 P. 3d, at 545. A fact underlying an enhancement cannot do double duty; it cannot be used to impose an upper term sentence and, on top of that, an enhanced term. Penal Code §1170(b). Where permitted by statute, however, a judge may use a fact qualifying as an enhancer to impose an upper term rather than an enhanced sentence. Ibid.; Rule 4.420(c). II This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. While this rule is rooted in longstanding common-law practice, its explicit statement in our decisions is recent. In Jones v. United States, 526 U. S. 227 (1999), we examined the Sixth Amendment’s historical and doctrinal foundations, and recognized that judicial factfinding operating to increase a defendant’s otherwise maximum punishment posed a grave constitutional question. Id., at 239–252. While the Court construed the statute at issue to avoid the question, the Jones opinion presaged our decision, some 15 months later, in Apprendi v. New Jersey, 530 U. S. 466 (2000). Charles Apprendi was convicted of possession of a firearm for an unlawful purpose, a second-degree offense under New Jersey law punishable by five to ten years’ imprisonment. Id., at 468. A separate “hate crime” statute authorized an “extended term” of imprisonment: Ten to twenty years could be imposed if the trial judge found, by a preponderance of the evidence, that “ ‘[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.’ ” Id., at 468–469 (quoting N. J. Stat. Ann. §2C:44–3(e) (West Supp. 1999–2000)). The judge in Apprendi’s case so found, and therefore sentenced the defendant to 12 years’ imprisonment. This Court held that the Sixth Amendment proscribed the enhanced sentence. 530 U. S., at 471. Other than a prior conviction, see Almendarez-Torres v. United States, 523 U. S. 224, 239–247 (1998), we held in Apprendi, “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. See also Harris v. United States, 536 U. S. 545, 557–566 (2002) (plurality opinion) (“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.”). We have since reaffirmed the rule of Apprendi, applying it to facts subjecting a defendant to the death penalty, Ring v. Arizona, 536 U. S. 584, 602, 609 (2002), facts permitting a sentence in excess of the “standard range” under Washington’s Sentencing Reform Act, Blakely v. Washington, 542 U. S. 296, 304–305 (2004), and facts triggering a sentence range elevation under the then-mandatory Federal Sentencing Guidelines, United States v. Booker, 543 U. S. 220, 243–244 (2005). Blakely and Booker bear most closely on the question presented in this case. Ralph Howard Blakely was convicted of second-degree kidnapping with a firearm, a class B felony under Washington law. Blakely, 542 U. S., at 298–299. While the overall statutory maximum for a class B felony was ten years, the State’s Sentencing Reform Act (Reform Act) added an important qualification: If no facts beyond those reflected in the jury’s verdict were found by the trial judge, a defendant could not receive a sentence above a “standard range” of 49 to 53 months. Id., at 299–300. The Reform Act permitted but did not require a judge to exceed that standard range if she found “ ‘substantial and compelling reasons justifying an exceptional sentence.’ ” Ibid. (quoting Wash. Rev. Code Ann. §9.94A.120(2) (2000)). The Reform Act set out a nonexhaustive list of aggravating facts on which such a sentence elevation could be based. It also clarified that a fact taken into account in fixing the standard range—i.e., any fact found by the jury—could under no circumstances count in the determination whether to impose an exceptional sentence. 542 U. S., at 299–300. Blakely was sentenced to 90 months’ imprisonment, more than three years above the standard range, based on the trial judge’s finding that he had acted with deliberate cruelty. Id., at 300. Applying the rule of Apprendi, this Court held Blakely’s sentence unconstitutional. The State in Blakely had endeavored to distinguish Apprendi on the ground that “[u]nder the Washington guidelines, an exceptional sentence is within the court’s discretion as a result of a guilty verdict.” Brief for Respondent in Blakely v. Washington, O.T. 2003, No. 02–1632, p. 15. We rejected that argument. The judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amendment’s jury-trial guarantee. 542 U. S., at 304–314. It did not matter, we explained, that Blakely’s sentence, though outside the standard range, was within the 10-year maximum for class B felonies: “Our precedents make clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant . . . . In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ . . . and the judge exceeds his proper authority.” Id., at 303 (emphasis in original) (quoting 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872)). Because the judge in Blakely’s case could not have imposed a sentence outside the standard range without finding an additional fact, the top of that range—53 months, and not 10 years—was the relevant statutory maximum. 542 U. S., at 304. The State had additionally argued in Blakely that Apprendi’s rule was satisfied because Washington’s Reform Act did not specify an exclusive catalog of potential facts on which a judge might base a departure from the standard range. This Court rejected that argument as well. “Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact … one of several specified facts . . . or any aggravating fact (as here),” we observed, “it remains the case that the jury’s verdict alone does not authorize the sentence.” 542 U. S., at 305 (emphasis in original). Further, we held it irrelevant that the Reform Act ultimately left the decision whether or not to depart to the judge’s discretion: “Whether the judicially determined facts require a sentence enhancement or merely allow it,” we noted, “the verdict alone does not authorize the sentence.” Ibid., n. 8 (emphasis in original). Freddie Booker was convicted of possession with intent to distribute crack cocaine and was sentenced under the Federal Sentencing Guidelines. The facts found by Booker’s jury yielded a base Guidelines range of 210 to 262 months’ imprisonment, a range the judge could not exceed without undertaking additional factfinding. Booker, 543 U. S., at 227, 233–234. The judge did so, finding by a preponderance of the evidence that Booker possessed an amount of drugs in excess of the amount determined by the jury’s verdict. That finding boosted Booker into a higher Guidelines range. Booker was sentenced at the bottom of the higher range, to 360 months in prison. Id., at 227. In an opinion written by Justice Stevens for a five-Member majority, the Court held Booker’s sentence impermissible under the Sixth Amendment. In the majority’s judgment, there was “no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in [Blakely].” Id., at 233. Both systems were “mandatory and impose[d] binding requirements on all sentencing judges.” Ibid.[Footnote 10] Justice Stevens’ opinion for the Court, it bears emphasis, next expressed a view on which there was no disagreement among the Justices. He acknowledged that the Federal Guidelines would not implicate the Sixth Amendment were they advisory: “If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by [this case] would have been avoided entirely if Congress had omitted from the [federal Sentencing Reform Act] the provisions that make the Guidelines binding on district judges . . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant. “The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.” Ibid. (citations omitted). In an opinion written by Justice Breyer, also garnering a five-Member majority, the Court faced the remedial question, which turned on an assessment of legislative intent: What alteration would Congress have intended had it known that the Guidelines were vulnerable to a Sixth Amendment challenge? Three choices were apparent: the Court could invalidate in its entirety the Sentencing Reform Act of 1984 (SRA), the law comprehensively delineating the federal sentencing system; or it could preserve the SRA, and the mandatory Guidelines regime the SRA established, by attaching a jury-trial requirement to any fact increasing a defendant’s base Guidelines range; finally, the Court could render the Guidelines advisory by severing two provisions of the SRA, 18 U. S. C. §3553(b)(1) and 3742(e) (2000 ed. and Supp. IV). 543 U. S., at 246–249.[Footnote 11] Recognizing that “reasonable minds can, and do, differ” on the remedial question, the majority concluded that the advisory Guidelines solution came closest to the congressional mark. Id., at 248–258. Under the system described in Justice Breyer’s opinion for the Court in Booker, judges would no longer be tied to the sentencing range indicated in the Guidelines. But they would be obliged to “take account of” that range along with the sentencing goals Congress enumerated in the SRA at 18 U. S. C. §3553(a). 543 U. S., at 259, 264.[Footnote 12] Having severed §3742(e), the provision of the SRA governing appellate review of sentences under the mandatory Guidelines scheme, see supra, at 13, and n. 11, the Court installed, as consistent with the Act and the sound administration of justice, a “reasonableness” standard of review. 543 U. S., at 261. Without attempting an elaborate discussion of that standard, Justice Breyer’s remedial opinion for the Court observed: “Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is reasonable.” Ibid.[Footnote 13] The Court emphasized the provisional character of the Booker remedy. Recognizing that authority to speak “the last word” resides in Congress, the Court said: “The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.” Id., at 265. We turn now to the instant case in light of both parts of the Court’s Booker opinion, and our earlier decisions in point. III Under California’s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. See supra, at 4–5. An element of the charged offense, essential to a jury’s determination of guilt, or admitted in a defendant’s guilty plea, does not qualify as such a circumstance. See supra, at 5–6. Instead, aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. 542 U. S., at 303 (“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (emphasis in original)). Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, see supra, at 5, the DSL violates Apprendi’s bright-line rule: Except for 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. While “[t]hat should be the end of the matter,” Blakely, 542 U. S., at 313, in People v. Black, the California Supreme Court held otherwise. In that court’s view, the DSL survived examination under our precedent intact. See 35 Cal. 4th, at 1254–1261, 113 P. 3d, at 543–548. The Black court acknowledged that California’s system appears on surface inspection to be in tension with the rule of Apprendi. But in “operation and effect,” the court said, the DSL “simply authorize[s] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range.” 35 Cal. 4th, at 1254, 113 P. 3d, at 543. Therefore, the court concluded, “the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker.” Ibid. But see id., at 1270, 113 P. 3d, at 554 (Kennard, J., concurring and dissenting) (“Nothing in the high court’s majority opinions in Apprendi, Blakely, and Booker suggests that the constitutionality of a state’s sentencing scheme turns on whether, in the words of the majority here, it involves the type of factfinding ‘that traditionally has been performed by a judge.’ ” (quoting id., at 1253, 113 P. 3d, at 542)). The Black court’s conclusion that the upper term, and not the middle term, qualifies as the relevant statutory maximum, rested on several considerations. First, the court reasoned that, given the ample discretion afforded trial judges to identify aggravating facts warranting an upper term sentence, the DSL “does not represent a legislative effort to shift the proof of particular facts from elements of a crime (to be proved to a jury) to sentencing factors (to be decided by a judge). . . . Instead, it afforded the sentencing judge the discretion to decide, with the guidance of rules and statutes, whether the facts of the case and the history of the defendant justify the higher sentence. Such a system does not diminish the traditional power of the jury.” Id., at 1256, 113 P. 3d, at 544 (footnote omitted). We cautioned in Blakely, however, that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. Blakely, 542 U. S., at 305, and n. 8. The Black court also urged that the DSL is not cause for concern because it reduced the penalties for most crimes over the prior indeterminate sentencing regime. 35 Cal. 4th, at 1256–1258, 113 P. 3d, at 544–545. But see id., at 1271–1272, 113 P. 3d, at 555 (Kennard, J., concurring and dissenting) (“This aspect of our sentencing law does not differ significantly from the Washington sentencing scheme [the high court invalidated in Blakely.]”); supra, at 10. Furthermore, California’s system is not unfair to defendants, for they “cannot reasonably expect a guarantee that the upper term will not be imposed” given judges’ broad discretion to impose an upper term sentence or to keep their punishment at the middle term. 35 Cal. 4th, at 1258–1259, 113 P. 3d, at 545–546. The Black court additionally noted that the DSL requires statutory enhancements (as distinguished from aggravators)—e.g., the use of a firearm or other dangerous weapon, infliction of great bodily injury, Penal Code §§12022, 12022.7–.8 (West 2000 and Supp. 2006)—to be charged in the indictment and proved to a jury beyond a reasonable doubt. 35 Cal. 4th, at 1257, 113 P. 3d, at 545. The Black court’s examination of the DSL, in short, satisfied it that California’s sentencing system does not implicate significantly the concerns underlying the Sixth Amendment’s jury-trial guarantee. Our decisions, however, leave no room for such an examination. Asking whether a defendant’s basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, we have said, is the very inquiry Apprendi’s “bright-line rule” was designed to exclude. See Blakely, 542 U. S., at 307–308. But see Black, 35 Cal. 4th, at 1260, 113 P. 3d, at 547 (stating, remarkably, that “[t]he high court precedents do not draw a bright line”).[Footnote 14] Ultimately, the Black court relied on an equation of California’s DSL system to the post-Booker federal system. “The level of discretion available to a California judge in selecting which of the three available terms to impose,” the court said, “appears comparable to the level of discretion that the high court has chosen to permit federal judges in post-Booker sentencing.” 35 Cal. 4th, at 1261, 113 P. 3d, at 548. The same equation drives Justice Alito’s dissent. See post, at 1 (“The California sentencing law . . . is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in [Booker].”). The attempted comparison is unavailing. As earlier explained, see supra, at 12–13, this Court in Booker held the Federal Sentencing Guidelines incompatible with the Sixth Amendment because the Guidelines were “mandatory and imposed binding requirements on all sentencing judges.” 543 U. S., at 233. “[M]erely advisory provisions,” recommending but not requiring “the selection of particular sentences in response to differing sets of facts,” all Members of the Court agreed, “would not implicate the Sixth Amendment.” Ibid. To remedy the constitutional infirmity found in Booker, the Court’s majority excised provisions that rendered the system mandatory, leaving the Guidelines in place as advisory only. Id., at 245–246. See also supra, at 13–14. California’s DSL does not resemble the advisory system the Booker Court had in view. Under California’s system, judges are not free to exercise their “discretion to select a specific sentence within a defined range.” Booker, 543 U. S., at 233. California’s Legislature has adopted sentencing triads, three fixed sentences with no ranges between them. Cunningham’s sentencing judge had no discretion to select a sentence within a range of 6 to 16 years. His instruction was to select 12 years, nothing less and nothing more, unless he found facts allowing the imposition of a sentence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies. Nevertheless, the Black court attempted to rescue the DSL’s judicial factfinding authority by typing it simply a reasonableness constraint, equivalent to the constraint operative in the federal system post-Booker. See 35 Cal. 4th, at 1261, 113 P. 3d, at 548 (“Because an aggravating factor under California law may include any factor that the judge reasonably deems relevant, the [DSL’s] requirement that an upper term sentence be imposed only if an aggravating factor exists is comparable to Booker’s requirement that a federal judge’s sentencing decision not be unreasonable.”). Reasonableness, however, is not, as the Black court would have it, the touchstone of Sixth Amendment analysis. The reasonableness requirement Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints. Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment. It is comforting, but beside the point, that California’s system requires judge-determined DSL sentences to be reasonable. Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless.[Footnote 15] To summarize: Contrary to the Black court’s holding, our decisions from Apprendi to Booker point to the middle term specified in California’s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.[Footnote 16] IV As to the adjustment of California’s sentencing system in light of our decision, “[t]he ball . . . lies in [California’s] court.” Booker, 543 U. S., at 265; cf. supra, at 15. We note that several States have modified their systems in the wake of Apprendi and Blakely to retain determinate sentencing. They have done so by calling upon the jury— either at trial or in a separate sentencing proceeding—to find any fact necessary to the imposition of an elevated sentence.[Footnote 17] As earlier noted, California already employs juries in this manner to determine statutory sentencing enhancements. See supra, at 7, 18. Other States have chosen to permit judges genuinely “to exercise broad discretion . . . within a statutory range,”[Footnote 18] which, “everyone agrees,” encounters no Sixth Amendment shoal. Booker, 543 U. S., at 233. California may follow the paths taken by its sister States or otherwise alter its system, so long as the State observes Sixth Amendment limitations declared in this Court’s decisions. * * * For the reasons stated, the judgment of the California Court of Appeal is reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The particular vulnerability of the victim is listed in Cal. Rule of Court 4.421(a)(3) (Criminal Cases) (West 2006) (hereinafter Rule), as a fact “relating to the crime.” Violent conduct indicating a serious danger to society is listed in Rule 4.421(b)(1) as a fact “relating to the defendant.” Footnote 2 In addition to a Sixth Amendment challenge, Cunningham disputed the substance of five of the six findings made by the trial judge. The appellate panel affirmed the trial judge’s vulnerable victim and violent conduct findings, but rejected the finding that Cunningham abused a position of trust (because that finding overlapped with the vulnerable victim finding). The panel did not decide whether the judge’s other findings were warranted, concluding that he properly relied on at least two aggravating facts in imposing the upper term, and that it was not “reasonably probable” that a different sentence would have been imposed absent any improper findings. App. 43–46; id., at 51 (May 4, 2005, order modifying opinion and denying rehearing). Footnote 3 Murder and certain other grave offenses still carry lengthy indeterminate terms with the possibility of early release on parole. Brief for Respondent 7, n. 2. See, e.g., Penal Code §190 (West Supp. 2006). Footnote 4 The Judicial Council includes the chief justice and another justice of the California Supreme Court, three judges sitting on the Courts of Appeal, ten judges from the Superior Courts, and other nonvoting members. Cal. Const., Art. 6, §6(a) (West Supp. 2006). The California Constitution grants the Council authority, inter alia, “to adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute.” Art. 6, §6(d). Footnote 5 The Rules were amended on January 1, 2007. Those amendments made technical changes, none of them material to the constitutional question before us. We refer in this opinion to the prior text of the Rules, upon which the parties and principal authorities rely. Footnote 6 The judge must provide a statement of reasons for a sentence only when a lower or upper term sentence is imposed. Rules 4.406(b), 4.420(e). Footnote 7E.g., Rule 4.421(a)(1) (“[T]he fact that . . . [t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.”). Footnote 8 E.g., Rule 4.421(b)(1) (“[T]he fact that . . . [t]he defendant has engaged in violent conduct which indicates a serious danger to society.”). Footnote 9 See also, e.g., Rule 4.420(b) (“Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation.” (emphasis added)); Rule 4.420(e) (court must provide “a concise statement of the ultimate facts that the court deemed to constitute circumstances in aggravation or mitigation” (emphasis added)). Footnote 10 California’s DSL, we note in this context, resembles pre-Booker federal sentencing in the same ways Washington’s sentencing system did: The key California Penal Code provision states that the sentencing court “shall order imposition of the middle term” absent “circumstances in aggravation or mitigation of the crime,” §1170(b) (emphasis added), and any move to the upper or lower term must be justified by “a concise statement of the ultimate facts” on which the departure rests, Rule 4.420(e) (emphasis added). But see post, at 7 (Alito, J., dissenting) (characterizing California’s DSL as indistinguishable from post-Booker sentencing). Footnote 11 Title 18 U. S. C. §3553(b)(1) mandated the imposition of a Guidelines sentence unless the district court found “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” Section 3742(e) directed the court of appeals to determine, inter alia, whether the district court correctly applied the Guidelines, §3742(e)(2), and, if the sentence imposed fell outside the applicable Guidelines range, whether the sentencing judge had provided a written statement of reasons, whether §3553(b) and the facts of the case warranted the departure, and whether the degree of departure was reasonable, §3742(e)(3). Footnote 12 Section 3553(a) instructs sentencing judges to consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” “the kinds of sentences available,” and the Guidelines and policy statements issued by the United States Sentencing Commission. §3553(a)(1), (3)–(5). Avoidance of unwarranted sentencing disparities, and the need to provide restitution, are also listed as concerns to which the judge should respond. §3553(a)(6)–(7). In a further enumeration, §3553(a) calls for the imposition of “a sentence sufficient, but not greater than necessary” to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” §3553(a)(2). Footnote 13 While this case does not call for elaboration of the reasonableness check on federal sentencing post-Booker, we note that the Court has granted review in two cases raising questions trained on that matter: Claiborne v. United States, No. 06–5618 (cert. granted, Nov. 3, 2006); and Rita v. United States, No. 06–5754 (cert. granted, Nov. 3, 2006). In Claiborne, the Court will consider whether it is consistent with the advisory cast of the Guidelines system post-Booker to require that extraordinary circumstances attend a sentence varying substantially from the Guidelines. Rita includes the question whether is it consistent with Booker to accord a presumption of reasonableness to a within-Guidelines sentence. In this regard, we note Justice Alito’s view that California’s DSL is essentially the same as post-Booker federal sentencing. Post, at 1–10. To maintain that position, his dissent previews, without benefit of briefing or argument, how “reasonableness review,” post-Booker, works. Post, at 13–15. It is neither necessary nor proper now to join issue with Justice Alito on this matter. Footnote 14Justice Kennedy urges a distinction between facts concerning the offense, where Apprendi would apply, and facts concerning the offender, where it would not. Post, at 1–2 (dissenting opinion). Apprendi itself, however, leaves no room for the bifurcated approach Justice Kennedy proposes. See 530 U. S., at 490 (“[A]ny 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.” (emphasis added)). Footnote 15 Justice Alito, however, would do just that. His opinion reads the remedial portion of the Court’s opinion in Booker to override Blakely, and to render academic the entire first part of Booker itself. Post, at 13–15. There would have been no majority in Booker for the revision of Blakely essayed in his dissent. Grounded in a notion of how federal reasonableness review operates in practice, Justice Alito “necessarily anticipates” a question that will be aired later this Term in Rita and Claiborne. See supra, at 14, n. 13. While we do not forecast the Court’s responses in those cases, we affirm the continuing vitality of our prior decisions in point. Footnote 16 Respondent and its amici argue that whatever this Court makes of California’s sentencing law, the Black court’s “construction” of that law as consistent with the Sixth Amendment is authoritative. Brief for Respondent 6, 18, 33; Brief for Hawaii et al. as Amici Curiae 17, 29. We disagree. The Black court did not modify California law so as to align it with this Court’s Sixth Amendment precedent. See 35 Cal. 4th, at 1273, 113 P. 3d, at 555–556 (Kennard, J., concurring and dissenting). Rather, it construed this Court’s decisions in an endeavor to render them consistent with California law. The Black court’s interpretation of federal constitutional law plainly does not qualify for this Court’s deference. Footnote 17 States that have so altered their systems are Alaska, Arizona, Kansas, Minnesota, North Carolina, Oregon, and Washington. Alaska Stat. §§12.55.155(f), 12.55.125(c) (2004); Ariz. Rev. Stat. Ann. §13–702.01 (West Supp. 2006); Kan. Stat. Ann. §§21–4716(b), 21–4718(b) (2005 Supp.); Minn. Stat. §244.10, subd. 5 (2005 Supp.); N.C. Gen. Stat. Ann. §15A–1340.16(a1) (Lexis 2005); 2005 Ore. Sess. Laws, ch. 463, §§3(1), 4(1); Wash. Rev. Code §§9.94A.535, 9.94A.537 (2006). The Colorado Supreme Court has adopted this approach as an interim solution. Lopez v. People, 113 P. 3d 713, 716 (Colo. 2005) (en banc). See also Stemen & Wilhelm, Finding the Jury: State Legislative Responses to Blakely v. Washington, 18 Fed. Sentencing Rptr. 7 (Oct. 2005) (majority of affected States have retained determinate sentencing systems). Footnote 18 See Ind. Code Ann. §35–50–2–1.3(a) (West 2006); Tenn. Code Ann. §40–35–210(c) (2005 Supp.).
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551.US.177
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The National Labor Relations Act permits States to regulate their labor relationships with public employees. Many States authorize public-sector unions to negotiate agency-shop agreements that entitle a union to levy fees on employees who are not union members but whom the union represents in collective bargaining. However, the First Amendment prohibits public-sector unions from using objecting nonmembers’ fees for ideological purposes not germane to the union’s collective-bargaining duties, Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236, and such unions must therefore observe various procedural requirements to ensure that an objecting nonmember can keep his fees from being used for such purposes, Teachers v. Hudson, 475 U. S. 292, 304–310. Washington State allows public-sector unions to charge nonmembers an agency fee equivalent to membership dues and to have the employer collect that fee through payroll deductions. An initiative approved by state voters (hereinafter §760) requires a union to obtain the nonmembers’ affirmative authorization before using their fees for election-related purposes. Respondent, a public-sector union, sent a “Hudson packet” to all nonmembers twice a year detailing their right to object to the use of fees for nonchargeable expenditures; respondent held any disputed fees in escrow until the Hudson process was complete. In separate lawsuits, petitioners alleged that respondent had failed to obtain the affirmative authorization required by §760 before spending nonmembers’ agency fees for electoral purposes. In No. 05–1657, the trial court found a §760 violation and awarded the State monetary and injunctive relief. In No. 05–1589, another judge held that §760 provided a private right of action, certified a class of nonmembers, and stayed the proceedings pending interlocutory appeal. The State Supreme Court held that although a nonmember’s failure to object after receiving the Hudson packet did not satisfy §760’s affirmative-authorization requirement, that requirement violated the First Amendment. Held: It does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes. Pp. 5–13. (a) It is undeniably unusual for a government agency to give a private entity the power to tax government employees. The notion that §760’s modest limitation upon that extraordinary benefit violates the First Amendment is counterintuitive, because it is undisputed that Washington could have restricted public-sector agency fees to the portion of union dues devoted to collective bargaining, or even eliminated them entirely. Washington’s far less restrictive limitation on respondent’s authorization to exact money from government employees is of no greater constitutional concern. P. 5. (b) The State Supreme Court extended this Court’s agency-fee cases well beyond their proper ambit in concluding that those cases, having balanced the constitutional rights of unions and nonmembers, required a nonmember to shoulder the burden of objecting before a union can be barred from spending his fees for purposes impermissible under Abood. The agency-fee cases did not balance constitutional rights in such a manner because unions have no constitutional entitlement to nonmember-employees’ fees. The Court has never suggested that the First Amendment is implicated whenever governments limit a union’s entitlement to agency fees above and beyond what Abood and Hudson require. The constitutional floor for unions’ collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions. Hudson’s admonition that “ ‘dissent is not to be presumed,’ ” 475 U. S., at 306, n. 16, means only that it would be improper for a court to enjoin the expenditures of all nonmembers’ agency fees when a narrower remedy could satisfy statutory or constitutional limitations. Pp. 5–7. (c) Contrary to respondent’s argument, §760 is not unconstitutional under this Court’s campaign-finance cases. For First Amendment purposes, it is immaterial that §760 restricts a union’s use of funds only after they are within the union’s possession. The fees are in the union’s possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees. The campaign-finance cases deal instead with governmental restrictions on how a regulated entity may spend money that has come into its possession without such coercion. Pp. 7–8. (d) While content-based speech regulations are presumptively invalid, see, e.g., R. A. V. v. St. Paul, 505 U. S. 377, 382, strict scrutiny is unwarranted when the risk that the government may drive ideas or viewpoints from the marketplace is attenuated, such as when the government acts in a capacity other than as regulator. Thus, the government can make content-based distinctions when subsidizing speech, see, e.g., Regan v. Taxation With Representation of Wash., 461 U. S. 540, 548–550, and can exclude speakers based on reasonable, viewpoint-neutral subject-matter grounds when permitting speech on government property that is a nonpublic forum, see, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799–800, 806. The principle underlying those cases is applicable here. Washington voters did not impermissibly distort the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the State’s authorization. They were seeking to protect the integrity of the election process, and their restriction was thus limited to the state-created harm that they sought to remedy. The First Amendment did not compel them to limit public-sector unions’ extraordinary entitlement to nonmembers’ agency fees more broadly than necessary to vindicate that concern. Pp. 8–11. (e) Section 760 is constitutional as applied to public-sector unions. There is no need in these cases to consider its application to private-sector unions. Pp. 11–13. No. 05–1589 and No. 05–1657, 156 Wash. 2d 543, 130 P. 3d 352, vacated and remanded. Scalia, J., delivered the opinion of the Court, Parts I and II–A and the second paragraph of footnote 2 of which were unanimous, and the remainder of which was joined by Stevens, Kennedy, Souter, Thomas, and Ginsburg, JJ. Breyer, J., filed an opinion concurring in part and concurring in the judgment, in which Roberts, C. J., and Alito, J., joined. Together with No. 05–1657, Washington v. Washington Education Association, also on certiorari to the same court.
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The State of Washington prohibits labor unions from using the agency-shop fees of a nonmember for election-related purposes unless the nonmember affirmatively consents. We decide whether this restriction, as applied to public-sector labor unions, violates the First Amendment. I The National Labor Relations Act leaves States free to regulate their labor relationships with their public employees. See 49 Stat. 450, as amended, 29 U. S. C. §152(2). The labor laws of many States authorize a union and a government employer to enter into what is commonly known as an agency-shop agreement. This arrangement entitles the union to levy a fee on employees who are not union members but who are nevertheless represented by the union in collective bargaining. See, e.g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 511 (1991). The primary purpose of such arrangements is to prevent nonmembers from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred. See, e.g., Machinists v. Street, 367 U. S. 740, 760–764 (1961). However, agency-shop arrangements in the public sector raise First Amendment concerns because they force individuals to contribute money to unions as a condition of government employment. Thus, in Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236 (1977), we held that public-sector unions are constitutionally prohibited from using the fees of objecting nonmembers for ideological purposes that are not germane to the union’s collective-bargaining duties. And in Teachers v. Hudson, 475 U. S. 292, 302, 304–310 (1986), we set forth various procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes. Neither Hudson nor any of our other cases, however, has held that the First Amendment mandates that a public-sector union obtain affirmative consent before spending a nonmember’s agency fees for purposes not chargeable under Abood. The State of Washington has authorized public-sector unions to negotiate agency-shop agreements. Where such agreements are in effect, Washington law allows the union to charge nonmembers an agency fee equivalent to the full membership dues of the union and to have this fee collected by the employer through payroll deductions. See, e.g., Wash. Rev. Code §§41.56.122(1), 41.59.060(2), 41.59.100 (2006). However, §42.17.760 (hereinafter §760), which is a provision of the Fair Campaign Practices Act (a state initiative approved by the voters of Washington in 1992), restricts the union’s ability to spend the agency fees that it collects. Section 760, as it stood when the decision under review was rendered, provided: “A labor organization may not use agency shop fees paid by an individual who is not a member of the organization to make contributions or expenditures to influence an election or to operate a political committee, unless affirmatively authorized by the individual.”[Footnote 1] Respondent, the exclusive bargaining agent for approximately 70,000 public educational employees, collected agency fees from nonmembers that it represented in collective bargaining. Consistent with its responsibilities under Abood and Hudson (or so we assume for purposes of these cases), respondent sent a “Hudson packet” to all nonmembers twice a year, notifying them of their right to object to paying fees for nonchargeable expenditures, and giving them three options: (1) pay full agency fees by not objecting within 30 days; (2) object to paying for nonchargeable expenses and receive a rebate as calculated by respondent; or (3) object to paying for nonchargeable expenses and receive a rebate as determined by an arbitrator. Respondent held in escrow any agency fees that were reasonably in dispute until the Hudson process was complete. In 2001, respondent found itself in Washington state courts defending, in two separate lawsuits, its expenditures of nonmembers’ agency fees. The first lawsuit was brought by the State of Washington, petitioner in No. 05–1657, and the second was brought as a putative class action by several nonmembers of the union, petitioners in No. 05–1589. Both suits claimed that respondent’s use of agency fees was in violation of §760. Petitioners alleged that respondent had failed to obtain affirmative authorization from nonmembers before using their agency fees for the election-related purposes specified in §760. In No. 05–1657, after a trial on the merits, the trial court found that respondent had violated §760 and awarded the State both monetary and injunctive relief. In No. 05–1589, a different trial judge held that §760 provided a private right of action, certified the class, and stayed further proceedings pending interlocutory appeal. After intermediate appellate court proceedings, a divided Supreme Court of Washington held that, although a nonmember’s failure to object after receiving respondent’s “Hudson packet” did not satisfy §760’s affirmative-authorization requirement as a matter of state law, the statute’s imposition of such a requirement violated the First Amendment of the Federal Constitution. See State ex rel. Washington State Public Disclosure Comm’n v. Washington Ed. Assn., 156 Wash. 2d 543, 553–571, 130 P. 3d 352, 356–365 (2006) (en banc). The court reasoned that this Court’s agency-fee jurisprudence established a balance between the First Amendment rights of unions and of nonmembers, and that §760 triggered heightened First Amendment scrutiny because it deviated from that balance by imposing on respondent the burden of confirming that a nonmember does not object to the expenditure of his agency fees for electoral purposes. The court also held that §760 interfered with respondent’s expressive associational rights under Boy Scouts of America v. Dale, 530 U. S. 640 (2000). We granted certiorari. 548 U. S. ___ (2006). II The public-sector agency-shop arrangement authorizes a union to levy fees on government employees who do not wish to join the union. Regardless of one’s views as to the desirability of agency-shop agreements, see Abood, 431 U. S., at 225, n. 20, it is undeniably unusual for a government agency to give a private entity the power, in essence, to tax government employees. As applied to agency-shop agreements with public-sector unions like respondent, §760 is simply a condition on the union’s exercise of this extraordinary power, prohibiting expenditure of a nonmember’s agency fees for election-related purposes unless the nonmember affirmatively consents. The notion that this modest limitation upon an extraordinary benefit violates the First Amendment is, to say the least, counterintuitive. Respondent concedes that Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. See Brief for Respondent 46–47. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely. See id., at 46 (citing Lincoln Fed. Union v. Northwestern Iron & Metal Co., 335 U. S. 525 (1949)). For the reasons that follow, we conclude that the far less restrictive limitation the voters of Washington placed on respondent’s authorization to exact money from government employees is of no greater constitutional concern. A The principal reason the Supreme Court of Washington concluded that §760 was unconstitutional was that it believed that our agency-fee cases, having balanced the constitutional rights of unions and of nonmembers, dictated that a nonmember must shoulder the burden of objecting before a union can be barred from spending his fees for purposes impermissible under Abood. See 156 Wash. 2d, at 557–563, 130 P. 3d, at 358–360. The court reached this conclusion primarily because our cases have repeatedly invoked the following proposition: “ ‘[D]issent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee.’ ” Hudson, 475 U. S., at 306, n. 16 (quoting Street, 367 U. S., at 774); see also Abood, supra, at 238. The court concluded that §760 triggered heightened First Amendment scrutiny because it deviated from this perceived constitutional balance by requiring unions to obtain affirmative consent. This interpretation of our agency-fee cases extends them well beyond their proper ambit. Those cases were not balancing constitutional rights in the manner respondent suggests, for the simple reason that unions have no constitutional entitlement to the fees of nonmember-employees. See Lincoln Fed. Union, supra, at 529–531. We have never suggested that the First Amendment is implicated whenever governments place limitations on a union’s entitlement to agency fees above and beyond what Abood and Hudson require. To the contrary, we have described Hudson as “outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its requirement under Abood.” Keller v. State Bar of Cal., 496 U. S. 1, 17 (1990) (emphasis added). The mere fact that Washington required more than the Hudson minimum does not trigger First Amendment scrutiny. The constitutional floor for unions’ collection and spending of agency fees is not also a constitutional ceiling for state-imposed restrictions. The Supreme Court of Washington read far too much into our admonition that “dissent is not to be presumed.” We meant only that it would be improper for a court to enjoin the expenditure of the agency fees of all employees, including those who had not objected, when the statutory or constitutional limitations established in those cases could be satisfied by a narrower remedy. See, e.g., Street, supra, at 768–770, 772–775 (discussing possible judicial remedies for violation of a federal statute that forbade unions from spending objecting employees’ fees for political purposes); Abood, supra, at 235–236, 237–242 (discussing possible judicial remedies for a state statute that unconstitutionally authorized a public-sector union to spend objecting nonmembers’ agency fees for ideological purposes not germane to collective bargaining); Hudson, supra, at 302, 304–310 (setting forth procedures necessary to prevent agency-shop arrangements from violating Abood). But, as the dissenting justices below correctly recognized, our repeated affirmation that courts have an obligation to interfere with a union’s statutory entitlement no more than is necessary to vindicate the rights of nonmembers does not imply that legislatures (or voters) themselves cannot limit the scope of that entitlement. B Respondent defends the judgment below on a ground quite different from the mistaken rationale adopted by the Supreme Court of Washington. Its argument begins with the premise that §760 is a limitation on how the union may spend “its” money, citing for that proposition the Washington Supreme Court’s description of §760 as encumbering funds that are lawfully within a union’s possession. Brief for Respondent 21; 156 Wash. 2d, at 568–569, 130 P. 3d, at 363–364. Relying on that premise, respondent invokes First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990), and related campaign-finance cases. It argues that, under the rigorous First Amendment scrutiny required by those cases, §760 is unconstitutional because it applies to ballot propositions and because it does not limit equivalent election-related expenditures by corporations. The Supreme Court of Washington’s description of §760 notwithstanding, our campaign-finance cases are not on point. For purposes of the First Amendment, it is entirely immaterial that §760 restricts a union’s use of funds only after those funds are already within the union’s lawful possession under Washington law. What matters is that public-sector agency fees are in the union’s possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees. The cases upon which respondent relies deal with governmental restrictions on how a regulated entity may spend money that has come into its possession without the assistance of governmental coercion of its employees. See, e.g., Bellotti, supra, at 767–768; Austin, supra, at 654–656. As applied to public-sector unions, §760 is not fairly described as a restriction on how the union can spend “its” money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money.[Footnote 2] The question that must be asked, therefore, is whether §760 is a constitutional condition on the authorization that public-sector unions enjoy to charge government employees agency fees. Respondent essentially answers that the statute unconstitutionally draws distinctions based on the content of the union’s speech, requiring affirmative consent only for election-related expenditures while permitting expenditures for the rest of the purposes not chargeable under Abood unless the nonmember objects. The contention that this amounts to unconstitutional content-based discrimination is off the mark. It is true enough that content-based regulations of speech are presumptively invalid. See, e.g., R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992) (citing cases). We have recognized, however, that “[t]he rationale of the general prohibition . . . is that content discrimination ‘raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.’ ” Id., at 387 (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991)). And we have identified numerous situations in which that risk is inconsequential, so that strict scrutiny is unwarranted. For example, speech that is obscene or defamatory can be constitutionally proscribed because the social interest in order and morality outweighs the negligible contribution of those categories of speech to the marketplace of ideas. See, e.g., R. A. V., 505 U. S., at 382–384. Similarly, content discrimination among various instances of a class of proscribable speech does not pose a threat to the marketplace of ideas when the selected subclass is chosen for the very reason that the entire class can be proscribed. See id., at 388 (confirming that governments may choose to ban only the most prurient obscenity). Of particular relevance here, our cases recognize that the risk that content-based distinctions will impermissibly interfere with the marketplace of ideas is sometimes attenuated when the government is acting in a capacity other than as regulator. Accordingly, it is well established that the government can make content-based distinctions when it subsidizes speech. See, e.g., Regan v. Taxation With Representation of Wash., 461 U. S. 540, 548–550 (1983). And it is also black-letter law that, when the government permits speech on government property that is a nonpublic forum, it can exclude speakers on the basis of their subject matter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of the purpose served by the forum. See, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 799–800, 806 (1985). The principle underlying our treatment of those situations is equally applicable to the narrow circumstances of these cases. We do not believe that the voters of Washington impermissibly distorted the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the State’s general authorization allowing public-sector unions to acquire and spend the money of government employees. As the Supreme Court of Washington recognized, the voters of Washington sought to protect the integrity of the election process, see 156 Wash. 2d, at 563, 130 P. 3d, at 361, which the voters evidently thought was being impaired by the infusion of money extracted from nonmembers of unions without their consent. The restriction on the state-bestowed entitlement was thus limited to the state-created harm that the voters sought to remedy. The voters did not have to enact an across-the-board limitation on the use of nonmembers’ agency fees by public-sector unions in order to vindicate their more narrow concern with the integrity of the election process. We said in R. A. V. that, when totally proscribable speech is at issue, content-based regulation is permissible so long as “there is no realistic possibility that official suppression of ideas is afoot.” 505 U. S., at 390. We think the same is true when, as here, an extraordinary and totally repealable authorization to coerce payment from government employees is at issue. Even if it be thought necessary that the content limitation be reasonable and viewpoint neutral, cf. Cornelius, supra, at 806, the statute satisfies that requirement. Quite obviously, no suppression of ideas is afoot, since the union remains as free as any other entity to participate in the electoral process with all available funds other than the state-coerced agency fees lacking affirmative permission. Cf. Regan, supra, at 549–550 (First Amendment does not require the government to enhance a person’s ability to speak). In sum, given the unique context of public-sector agency-shop arrangements, the content-based nature of §760 does not violate the First Amendment. We emphasize an important limitation upon our holding: we uphold §760 only as applied to public-sector unions such as respondent. Section 760 applies on its face to both public- and private-sector unions in Washington.[Footnote 3] Since private-sector unions collect agency fees through contractually required action taken by private employers rather than by government agencies, Washington’s regulation of those private arrangements presents a somewhat different constitutional question.[Footnote 4] We need not answer that question today, however, because at no stage of this litigation has respondent made an overbreadth challenge. See generally Schaumburg v. Citizens for Better Environment, 444 U. S. 620, 633–634 (1980) (applying overbreadth doctrine).[Footnote 5] Instead, respondent has consistently argued simply that §760 is unconstitutional as applied to itself. The only purpose for which it has noted the statute’s applicability to private-sector unions is to establish that the statute was meant to be a general limitation on electoral speech, and not just a condition on state agencies’ authorization of compulsory agency fees. See Brief for Respondent 24, 48. That limited contention, however, is both unconvincing and immaterial. The purpose of the voters of Washington was undoubtedly the general one of protecting the integrity of elections by limiting electoral spending in certain ways. But §760, though applicable to all unions, served that purpose through very different means depending on the type of union involved: It conditioned public-sector unions’ authorization to coerce fees from government employees at the same time that it regulated private-sector unions’ collective-bargaining agreements. The constitutionality of the means chosen with respect to private-sector unions has no bearing on whether §760 is constitutional as applied to public-sector unions. * * * We hold that it does not violate the First Amendment for a State to require that its public-sector unions receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes. We therefore vacate the judgment of the Supreme Court of Washington and remand the cases for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Washington has since amended §760 to codify a narrower interpretation of “use” of agency-shop fees than the interpretation adopted below by the state trial court that passed on that question. See Supp. Brief for Respondent 2–3. As respondent concedes, however, id., at 3, these cases are not moot. Because petitioners sought money damages for respondent’s alleged violation of the prior version of §760, it still matters whether the Supreme Court of Washington was correct to hold that that version was inconsistent with the First Amendment. Our analysis of whether §760’s affirmative-authorization requirement violates the constitutional rights of respondent is not affected by the amendment, which merely causes that requirement to be applicable less frequently than the state trial court thought. Footnote 2 Respondent might have had a point if, as it suggests at times, the statute burdened its ability to spend the dues of its own members. But §760 restricts solely the “use [of] agency shop fees paid by an individual who is not a member.” The only reason respondent’s use of its members’ dues was burdened is that respondent chose to commingle those dues with nonmembers’ agency fees. See App. to Pet. for Cert. in No. 05–1657, pp. 99a, 105a–107a. Respondent’s improvident accounting practices do not render §760 unconstitutional. We note as well that, given current technology, it will not likely be burdensome for any nonmember who wishes to do so to provide affirmative authorization for use of his fees for electoral expenditures. For similar reasons, the Supreme Court of Washington’s invocation of the union’s expressive associational rights under Boy Scouts of America v. Dale, 530 U. S. 640 (2000), was quite misplaced, as respondent basically concedes by not relying upon the case. Section 760 does not compel respondent’s acceptance of unwanted members or otherwise make union membership less attractive. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 68–69 (2006). Footnote 3 Under the National Labor Relations Act, it is generally not an unfair labor practice for private-sector employers to enter into agency-shop arrangements, see 29 U. S. C. §158(a)(3), but States retain the power under the Act to ban the execution or application of such agreements, see §164(b). Footnote 4 We do not suggest that the answer must be different. We have previously construed the authorization of private-sector agency-shop arrangements in the National Labor Relations Act in a manner that is arguably content based. See Communications Workers v. Beck, 487 U. S. 735, 738, 762–763 (1988) (§158(a)(3) authorizes expenditure of private-sector agency fees over a nonmember’s objection only in furtherance of the union’s obligations as exclusive bargaining representative); Ellis v. Railway Clerks, 466 U. S. 435, 450–451 (1984) (expenditures on publications that report about a union’s activities as exclusive bargaining representative can be charged to nonmembers over their objection). Footnote 5 Nor is it clear that the “strong medicine” of the overbreadth doctrine is even available to challenge a statute such as §760. See Virginia v. Hicks, 539 U. S. 113, 118–120 (2003) (recognizing that the doctrine’s benefits—eliminating the chilling effect that overbroad laws have on nonparties—must be weighed against its costs—blocking perfectly constitutional applications of a law). It may be argued that the only other targets of the statute’s narrow prohibition, private-sector unions, are sufficiently capable of defending their own interests in court that they will not be significantly “chilled.”
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550.US.429
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Under 26 U. S. C. §7426(a)(1), if the Internal Revenue Service (IRS) levies upon a third party’s property to collect taxes owed by another, the third party may bring a wrongful levy action against the United States, so long as such action is brought before “the expiration of 9 months from the date of the levy,” §6532(c)(1). In contrast, the limitations period for a tax refund action under 28 U. S. C. §1346(a)(1) begins with an administrative claim that may be filed within at least two years, and may be brought to court within another two years after an administrative denial. The IRS levied on a bank account in which petitioner (Trust) had deposited funds because the IRS assumed that the Trust’s creators had transferred assets to the Trust to evade taxes. The bank responded with a check to the Treasury. Almost a year later, the Trust and others brought a §7426(a)(1) action claiming wrongful levies, but the District Court dismissed the complaint because it was filed after the 9-month limitations period had expired. After unsuccessfully pursing a tax refund at the administrative level, the Trust filed a refund action under §1346(a)(1). The District Court held that a wrongful levy claim under §7426(a)(1) was the sole remedy possible and dismissed, and the Fifth Circuit affirmed. Held: The Trust missed §7426(a)(1)’s deadline for challenging a levy, and may not bring the challenge as a tax refund claim under §1346(a)(1). Section 7426(a)(1) provides the exclusive remedy for third-party wrongful levy claims. “[A] precisely drawn, detailed statute pre-empts more general remedies,” Brown v. GSA, 425 U. S. 820, 834, and it braces the preemption claim when resort to a general remedy would effectively extend the limitations period for the specific one, see id., at 833. If third parties could avail themselves of §1346(a)(1)’s general tax refund jurisdiction, they could effortlessly evade §7426(a)(1)’s much shorter limitations period. The Trust argues that, because United States v. Williams, 514 U. S. 527, construed §1346(a)(1)’s general jurisdictional grant expansively enough to cover third parties’ wrongful levy claims, treating §7426(a)(1) as the exclusive avenue for these claims would amount to a disfavored holding that §7426(a)(1) implicitly repealed §1346(a)(1)’s pre-existing jurisdictional grant. But this reads Williams too broadly. Williams involved a lien and was decided on the specific understanding that no other remedy was open to the plaintiff. Here, the Trust challenges a levy and could have made a timely claim under §7426(a)(1). Even if the presumption against implied repeals applied here, §7426(a)(1)’s 9-month limitations period cannot be reconciled with the notion that the same challenge would be open under §1346(a)(1) for up to four years. Nor can the two statutory schemes be harmonized by construing §7426(a)(1)’s filing deadline to cover only those actions seeking predeprivation remedies unavailable under §1346(a)(1). On its face, §7426(a)(1) applies to predeprivation and postdeprivation claims alike. Pp. 4–7. 434 F. 3d 807, affirmed. Souter, J., delivered the opinion for a unanimous Court.
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This is a challenge to the Internal Revenue Service’s levy upon the property of a trust, to collect taxes owed by another, an action specifically authorized by 26 U. S. C. §7426(a)(1), but subject to a statutory filing deadline the trust missed. The question is whether the trust may still challenge the levy through an action for tax refund under 28 U. S. C. §1346(a)(1). We hold that it may not. I The Internal Revenue Code provides that “[i]f any person liable to pay any tax neglects or refuses to pay the same after demand, the amount … shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” 26 U. S. C. §6321. “A federal tax lien, however, is not self-executing,” and the IRS must take “[a]ffirmative action … to enforce collection of the unpaid taxes.” United States v. National Bank of Commerce, 472 U. S. 713, 720 (1985). One of its “principal tools,” ibid., is a levy, which is a “legally sanctioned seizure and sale of property,” Black’s Law Dictionary 926 (8th ed. 2004); see also §6331(b) (“The term ‘levy’ as used in this title includes the power of distraint and seizure by any means”). To protect against a “ ‘wrongful’ ” imposition upon “property which is not the taxpayer’s,” S. Rep. No. 1708, 89th Cong., 2d Sess., 30 (1966), the Federal Tax Lien Act of 1966 added §7426(a)(1), providing that “[i]f a levy has been made on property … any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in … such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court.” 80 Stat. 1143. The action must, however, be brought before “the expiration of 9 months from the date of the levy.”[Footnote 1] §6532(c)(1). This short limitations period contrasts with its counterpart in a tax refund action under 28 U. S. C. §1346(a)(1), which begins with an administrative claim that may be filed within at least two years, and may be brought to court within another two after an administrative denial.[Footnote 2] The demand for greater haste when a third party contests a levy is no accident; as the Government explained in the hearings before passage of the Act, “[s]ince after seizure of property for nonpayment of taxes [an IRS] district director is likely to suspend further collection activities against the taxpayer, it is essential that he be advised promptly if he has seized property which does not belong to the taxpayer.” Hearings on H. R. 11256 and H. R. 11290 before the House Committee on Ways and Means, 89th Cong., 2d Sess., 57–58 (1966) (written statement of Stanley S. Surrey, Assistant Secretary of the Treasury); see also id., at 72 (statement of Laurens Williams, Chairman, Special Committee on Federal Liens, American Bar Association) (“A short (9 month) statute of limitations is provided, because it is important to get such controversies decided quickly so the Government may pursue the taxpayer’s own property if it made a mistake the first time”). II After Elmer W. Cullers, Jr., and Dorothy Cullers established the EC Term of Years Trust in 1991, the IRS assessed federal tax liabilities against them for what the Government claimed (and the Trust does not dispute, see Tr. of Oral Arg. 7) were unwarranted income tax deductions in the 1980s. The Government assumed that the Cullerses had transferred assets to the Trust to evade taxes, and so filed a tax lien against the Trust in August 1999. The Trust denied any obligation, but for the sake of preventing disruptive collection efforts by the IRS, it deposited funds in a bank account, against which the IRS issued a notice of levy to the bank in September 1999. In October, the bank responded with a check for over $3 million to the United States Treasury. Almost a year after that, the Trust (joined by several other trusts created by the Cullerses) brought a civil action under 26 U. S. C. §7426(a)(1) claiming wrongful levies, but the District Court dismissed it because the complaint was filed after the 9-month limitations period had expired, see §6532(c)(1). The court also noted that tax-refund claims under 28 U. S. C. §1346(a)(1) were not open to the plaintiff trusts because §7426 “ ‘affords the exclusive remedy for an innocent third party whose property is confiscated by the IRS to satisfy another person’s tax liability.’ ” BSC Term of Years Trust v. United States, 2001–1 USTC ¶50,174, p. 87,237, n. 1, 87 AFTR 2d ¶2001–390, p. 2001–547, n. 1 (WD Tex., 2000) (quoting Texas Comm. Bank Fort Worth, N. A. v. United States, 896 F. 2d 152, 156 (CA5 1990); emphasis deleted). At first the Trust sought review by the Court of Appeals for the Fifth Circuit, but then voluntarily dismissed its appeal. BSC Term of Years Trust v. United States, 87 AFTR 2d ¶2001–1039, p. 2001–2532 (2001). After unsuccessfully pursuing a tax refund at the administrative level, the Trust filed a second action, this one for a refund under §1346(a)(1). The District Court remained of the view that a claim for a wrongful levy under §7426(a)(1) had been the sole remedy possible and dismissed.[Footnote 3] The Court of Appeals for the Fifth Circuit affirmed. Because the Ninth Circuit, on the contrary, has held that §7426(a)(1) is not the exclusive remedy for third parties challenging a levy, see WWSM Investors v. United States, 64 F. 3d 456 (1995), we granted certiorari to resolve the conflict, 549 U. S.___ (2006). We affirm. III “In a variety of contexts the Court has held that a precisely drawn, detailed statute pre-empts more general remedies.” Brown v. GSA, 425 U. S. 820, 834 (1976); see Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 284–286 (1983) (adverse claimants to real property of the United States may not rely on “officer’s suits” or on other general remedies because the Quiet Title Act of 1972 is their exclusive recourse); see also Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561 (1942) (venue in patent infringement cases is governed by a statute dealing specifically with patents, not a general venue provision). It braces the preemption claim when resort to a general remedy would effectively extend the limitations period for the specific one. See Brown v. GSA, supra, at 833 (rejecting an interpretation that would “driv[e] out of currency” a narrowly aimed provision “with its rigorous … time limitations” by permitting “access to the courts under other, less demanding statutes”); see also Rancho Palos Verdes v. Abrams, 544 U. S. 113, 122–123 (2005) (concluding that 47 U. S. C. §332(c) precludes resort to the general cause of action under 42 U. S. C. §1983, in part because §332 “limits relief in ways that §1983 does not” by requiring judicial review to be sought within 30 days); 544 U. S., at 130, n. (Stevens, J., concurring in judgment) (same). Resisting the force of the better-fitted statute requires a good countervailing reason, and none appears here. Congress specifically tailored §7426(a)(1) to third party claims of wrongful levy, and if third parties could avail themselves of the general tax refund jurisdiction of §1346(a)(1), they could effortlessly evade the levy statute’s 9-month limitations period thought essential to the Government’s tax collection. The Trust argues that in United States v. Williams, 514 U. S. 527 (1995), we construed the general jurisdictional grant of §1346(a)(1) expansively enough to cover third parties’ wrongful levy claims. So, according to the Trust, treating §7426(a)(1) as the exclusive avenue for these claims would amount to a disfavored holding that §7426(a)(1) implicitly repealed the pre-existing jurisdictional grant of §1346(a)(1). See Radzanower v. Touche Ross & Co., 426 U. S. 148 (1976); Morton v. Mancari, 417 U. S. 535 (1974). But the Trust reads Williams too broadly. Although we decided that §1346(a)(1) authorizes a tax-refund claim by a third party whose property was subjected to an allegedly wrongful tax lien, we so held on the specific understanding that no other remedy, not even a timely claim under §7426(a)(1), was open to the plaintiff in that case. See Williams, supra, at 536–538. Here, on the contrary, the Trust challenges a levy, not a lien, and could have made a timely claim under §7426(a)(1) for the relief it now seeks under §1346(a)(1).[Footnote 4] And even if the canon against implied repeals applied here, the Trust still could not prevail. We simply cannot reconcile the 9-month limitations period for a wrongful levy claim under §7426(a)(1) with the notion that the same challenge would be open under §1346(a)(1) for up to four years. See Posadas v. National City Bank, 296 U. S. 497, 503 (1936) (“[W]here provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one”). On this point, the Trust proposes that the two statutory schemes can be “harmonized” by construing the deadline for filing §7426(a)(1) claims to cover only those actions seeking “pre-deprivation” remedies unavailable under §1346(a)(1). See Reply Brief for Petitioner 6. But this reading would violate the clear text of §7426(a)(1), which on its face applies to pre-deprivation and post-deprivation claims alike. See 26 U. S. C. §7426(a)(1) (“Such action may be brought without regard to whether such property has been surrendered to or sold by the Secretary”). * * * The Trust missed the deadline for challenging a levy under §7426(a)(1), and may not bring the challenge as a tax refund claim under §1346(a)(1). The judgment of the Court of Appeals is accordingly affirmed. It is so ordered. Footnote 1 This period can be extended for up to 12 months if the third party makes an administrative request for the return of the property wrongfully levied upon. See 26 U. S. C. §6532(c)(2). Footnote 2 Title 28 U. S. C. §1346(a)(1) gives district courts “jurisdiction, concurrent with the United States Court of Federal Claims,” over “[a]ny civil action against the United States for the recovery of,” among other things, “any internal-revenue tax alleged to have been erroneously or illegally assessed or collected.” A taxpayer may bring such an action within two years after the IRS disallows the taxpayer’s administrative refund claim. See 26 U. S. C. §§6532(a)(1)–(2); see also §7422(a) (requiring a taxpayer to file the administrative claim before seeking a refund in court). An administrative refund claim must, in turn, be filed within two years from the date the tax was paid or three years from the time the tax return was filed, whichever is later. See §6511(a). Footnote 3 The District Court declined to dismiss the Trust’s claim on res judicata grounds, and the Government does not argue claim or issue preclusion in this Court, see Brief for United States 5, n. 2. Footnote 4 It has been commonly understood that Williams did not extend §1346(a)(1) to parties in the Trust’s position. See 434 F. 3d 807, 810 (CA5 2006) (case below) (“To construe Williams to allow an alternative remedy under §1346, with its longer statute of limitations period, would undermine the surety provided by the clear avenue to recovery under §7426” (citation omitted)); Dahn v. United States, 127 F. 3d 1249, 1253 (CA10 1997) (“[T]here were no tax levies involved in [Williams]. Thus, the Court was concerned solely with the reach of §1346 per se; the exclusivity of a concurrent §7426 claim was never in issue. Indeed, the Court specifically emphasized the inapplicability of §7426 (or any other meaningful remedy) to reinforce its broad reading of §1346”); WWSM Investors v. United States, 64 F. 3d 456, 459 (CA9 1995) (Brunetti, J., dissenting) (“The Supreme Court recognized Williams as a refund, not a wrongful levy, case, and [did not] even hint that §7426 was not the exclusive remedy for a claimed wrongful levy”); Rev. Rul. 2005–49, 2005–2 Cum. Bull. 126 (“The rationale in Williams is inapplicable to wrongful levy suits because Congress created an exclusive remedy under section 7426 for third persons claiming an interest in property levied upon by the [IRS]”); but see WWSM Investors, supra, at 459 (majority opinion) (“[S]eizing money from WWSM’s bank account is functionally equivalent to what the IRS did in Williams—placing a lien on property in escrow under circumstances which compelled Mrs. Williams to pay the IRS and discharge the lien”).
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549.US.561
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In the 1970s, Congress added two air pollution control schemes to the Clean Air Act (Act): New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of which covers modified, as well as new, stationary sources of air pollution. The NSPS provisions define “modification” of such a source as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one. 42 U. S. C. §7411(a)(4). The PSD provisions require a permit before a “major emitting facility” can be “constructed,” §7475(a), and define such “construction” to include a “modification (as defined in [NSPS]),” §7479(2)(C). Despite this definitional identity, the Environmental Protection Agency’s (EPA) regulations interpret “modification” one way for NSPS but differently for PSD. The NSPS regulations require a source to use the best available pollution-limiting technology, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 846, when a modification would increase the discharge of pollutants measured in kilograms per hour, 40 CFR §60.14(a), but the 1980 PSD regulations require a permit for a modification only when it is a “major” one, §51.166(b)(2)(i), and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years, §51.166(b)(21)(ii). After respondent Duke Energy Corporation replaced or redesigned the workings of some of its coal-fired electric generating units, the United States filed this enforcement action, claiming, among other things, that Duke violated the PSD provisions by doing the work without permits. Petitioner environmental groups intervened as plaintiffs and filed a complaint charging similar violations. Duke moved for summary judgment, asserting, inter alia, that none of its projects was a “major modification” requiring a PSD permit because none increased hourly emissions rates. Agreeing, the District Court entered summary judgment for Duke on all PSD claims. The Fourth Circuit affirmed, reasoning that Congress’s decision to create identical statutory definitions of “modification” in the Act’s NSPS and PSD provisions affirmatively mandated that this term be interpreted identically in the regulations promulgated under those provisions. When the court sU. S.onte requested supplemental briefing on the relevance of this Court’s decision in Rowan Cos. v. United States, 452 U. S. 247, 250, that the Government could not adopt different interpretations of the word “wages” in different statutory provisions, plaintiffs injected a new issue into the case, arguing that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the regulation’s validity that could not be raised in an enforcement proceeding, see 42 U. S. C. §7607(b)(2), since judicial review for validity can be obtained only by a petition to the District of Columbia Circuit, generally within 60 days of EPA’s rulemaking, §7607(b)(1). The Fourth Circuit rejected this argument, ruling that its interpretation did not invalidate the PSD regulations because they can be interpreted to require an increase in the hourly emissions rate as an element of a major “modification.” Held: The Fourth Circuit’s reading of the PSD regulations in an effort to conform them with their NSPS counterparts on “modification” amounted to the invalidation of the PSD regulations, which must comport with the Clean Air Act’s limits on judicial review of EPA regulations for validity. Pp. 8–17. (a) Principles of statutory interpretation do not rigidly mandate identical regulation here. Because “[m]ost words have different shades of meaning and consequently may be variously construed, [even] when [they are] used more than once in the same statute or … section,” the “natural presumption that identical words used in different parts of the same act are intended to have the same meaning … is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433. A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different ways of implementation. The point is the same even when the terms share a common statutory definition, if it is general enough. See Robinson v. Shell Oil Co., 519 U. S. 337, 343–344. Robinson is not inconsistent with Rowan, where the Court’s invalidation of the differing interpretations of “wages,” 452 U. S., at 252, turned not on the fact that a “substantially identical” definition of that word appeared in each of the statutory provisions at issue, but on the failure of the regulations in question to serve Congress’s manifest “concern for the interest of simplicity and ease of administration,” id., at 255. In fact, in a case close to Rowan’s facts, the Court recently declined to follow a categorical rule of resolving ambiguities in identical statutory terms identically regardless of their surroundings, United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213, but instead accorded “substantial judicial deference” to an agency’s “longstanding,” “reasonable,” and differing interpretations of the statutory term at issue, id., at 218–220. It makes no difference here that the Clean Air Act does not merely repeat the same definition in its NSPS and PSD provisions, but that the PSD provisions refer back to the section defining “modification” for NSPS purposes. Nothing in the text or legislative history of the statutory amendment that added the NSPS cross-reference suggests that Congress meant to eliminate customary agency discretion to resolve questions about a statutory definition by looking to the surroundings in which the defined term appears. EPA’s construction need do no more than fall within the outer limits of what is reasonable, as set by the Act’s common definition. Pp. 9–12. (b) The Fourth Circuit’s construction of the 1980 PSD regulations to conform them to their NSPS counterparts was not a permissible reading of their terms. The PSD regulations clearly do not define a “major modification” in terms of an increase in the “hourly emissions rate.” On its face, the definitional section specifies no rate at all, hourly or annual, merely requiring a “physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any” regulated pollutant. 40 CFR §51.166(b)(2)(i). But even when the regulations mention a rate, it is annual, not hourly. See, e.g., §51.166(b)(23)(i). Further at odds with the idea that hourly rate is relevant is the mandate that “[a]ctual emissions shall be calculated using the unit’s actual operating hours,” §51.166(b)(21)(ii), since “actual emissions” must be measured in a manner looking to the number of hours the unit is or probably will be actually running. The Court of Appeals’s reasons for its different view are no match for these textual differences. Consequently, the Court of Appeals’s construction of the 1980 PSD regulations must be seen as an implicit invalidation of those regulations, a form of judicial review implicating the provisions of §7607(b), which limit challenges to the validity of a regulation during enforcement proceedings when such review “could have been obtained” in the Court of Appeals for the District of Columbia within 60 days of EPA rulemaking. Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here. The Court has no occasion itself at this point to consider the significance of §7607(b). Pp. 12–17. (c) Duke’s claim that, even assuming the Act and the 1980 regulations authorize EPA to construe a PSD “modification” as it has done, EPA has been inconsistent in its positions and is now retroactively targeting 20 years of accepted practice was not addressed below. To the extent the claim is not procedurally foreclosed, Duke may press it on remand. P. 17. 411 F. 3d 539, vacated and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined, and in which Thomas, J., joined as to all but Part III–A. Thomas, J., filed an opinion concurring in part.
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In the 1970s, Congress added two air pollution control schemes to the Clean Air Act: New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD), each of them covering modified, as well as new, stationary sources of air pollution. The NSPS provisions define the term “modification,” 42 U. S. C. §7411(a)(4), while the PSD provisions use that word “as defined in” NSPS, §7479(2)(C). The Court of Appeals concluded that the statute requires the Environmental Protection Agency (EPA) to conform its PSD regulations on “modification” to their NSPS counterparts, and that EPA’s 1980 PSD regulations can be given this conforming construction. We hold that the Court of Appeals’s reading of the 1980 PSD regulations, intended to align them with NSPS, was inconsistent with their terms and effectively invalidated them; any such result must be shown to comport with the Act’s restrictions on judicial review of EPA regulations for validity. I The Clean Air Amendments of 1970, 84 Stat. 1676, broadened federal authority to combat air pollution, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 845–846 (1984), and directed EPA to devise National Ambient Air Quality Standards (NAAQS) limiting various pollutants, which the States were obliged to implement and enforce, 42 U. S. C. §§7409, 7410. The amendments dealing with NSPS authorized EPA to require operators of stationary sources of air pollutants to use the best technology for limiting pollution, Chevron, supra, at 846; see also 1 F. Grad, Environmental Law §2.03, p. 2–356 (2006), both in newly constructed sources and those undergoing “modification,” 42 U. S. C. §7411(a)(2). Section 111(a) of the 1970 amendments defined this term within the NSPS scheme as “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted,” 42 U. S. C. §7411(a)(4). EPA’s 1975 regulations implementing NSPS provided generally that “any physical or operational change to an existing facility which results in an increase in the emission rate to the atmosphere of any pollutant to which a standard applies shall be considered a modification within the meaning of [S]ection 111.” 40 CFR §60.14(a) (1976). Especially significant here is the identification of an NSPS “modification” as a change that “increase[s] … the emission rate,” which “shall be expressed as kg/hr of any pollutant discharged into the atmosphere.” §60.14(b).[Footnote 1] NSPS, however, did too little to “achiev[e] the ambitious goals of the 1970 Amendments,” R. Belden, Clean Air Act 7 (2001) (hereinafter Belden), and the Clean Air Act Amendments of 1977, 91 Stat. 685, included the PSD provisions, which aimed at giving added protection to air quality in certain parts of the country “notwithstanding attainment and maintenance of” the NAAQS. 42 U. S. C. §7470(1).[Footnote 2] The 1977 amendments required a PSD permit before a “major emitting facility” could be “constructed” in an area covered by the scheme. §7475(a). As originally enacted, PSD applied only to newly constructed sources, but soon a technical amendment added the following subparagraph: “The term ‘construction’ when used in connection with any source or facility, includes the modification (as defined in [S]ection 111(a)) of any source or facility.” §14(a)(54), 91 Stat. 1402, 42 U. S. C. §7479(2)(C); see also New York v. EPA, 413 F. 3d 3, 13 (CADC 2005). In other words, the “construction” requiring a PSD permit under the statute was made to include (though it was not limited to) a “modification” as defined in the statutory NSPS provisions. In 1980, EPA issued PSD regulations,[Footnote 3] which “limited the application of [PSD] review” of modified sources to instances of “ ‘major’ modificatio[n],” Belden 46, defined as “any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act.” 40 CFR §51.166(b)(2)(i) (1987). Further regulations in turn addressed various elements of this definition, three of which are to the point here. First, the regulations specified that an operational change consisting merely of “[a]n increase in the hours of operation or in the production rate” would not generally constitute a “physical change or change in the method of operation.” §51.166(b)(2)(iii)(f ). For purposes of a PSD permit, that is, such an operational change would not amount to a “modification” as the Act defines it. Second, the PSD regulations defined a “net emissions increase” as “[a]ny increase in actual emissions from a particular physical change or change in the method of operation,” net of other contemporaneous “increases and decreases in actual emissions at the source.” §51.166(b)(3). “Actual emissions” were defined to “equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation.” §51.166(b)(21)(ii). “[A]ctual emissions” were to be “calculated using the unit’s actual operating hours [and] production rates.” Ibid. Third, the term “significant” was defined as “a rate of emissions that would equal or exceed” one or another enumerated threshold, each expressed in “tons per year.” §51.166(b)(23)(i). It would be bold to try to synthesize these statutory and regulatory provisions in a concise paragraph, but three points are relatively clear about the regime that covers this case: (a) The Act defines modification of a stationary source of a pollutant as a physical change to it, or a change in the method of its operation, that increases the amount of a pollutant discharged or emits a new one. (b) EPA’s NSPS regulations require a source to use the best available pollution-limiting technology only when a modification would increase the rate of discharge of pollutants measured in kilograms per hour. (c) EPA’s 1980 PSD regulations require a permit for a modification (with the same statutory definition) only when it is a major one and only when it would increase the actual annual emission of a pollutant above the actual average for the two prior years. The Court of Appeals held that Congress’s provision defining a PSD modification by reference to an NSPS modification caught not only the statutory NSPS definition, but also whatever regulatory gloss EPA puts on that definition at any given time (for the purposes of the best technology requirement). When, therefore, EPA’s PSD regulations specify the “change” that amounts to a “major modification” requiring a PSD permit, they must measure an increase in “the amount of any air pollutant emitted,” 42 U. S. C. §7411(a)(4), in terms of the hourly rate of discharge, just the way NSPS regulations do. Petitioners and the United States say, on the contrary, that when EPA addresses the object of the PSD scheme it is free to put a different regulatory interpretation on the common statutory core of “modification,” by measuring increased emission not in terms of hourly rate but by the actual, annual discharge of a pollutant that will follow the modification, regardless of rate per hour. This disagreement is the nub of the case. II Respondent Duke Energy Corporation runs 30 coal-fired electric generating units at eight plants in North and South Carolina. United States v. Duke Energy Corp., 411 F. 3d 539, 544 (CA4 2005). The units were placed in service between 1940 and 1975, and each includes a boiler containing thousands of steel tubes arranged in sets. Ibid. Between 1988 and 2000,[Footnote 4] Duke replaced or redesigned 29 tube assemblies in order to extend the life of the units and allow them to run longer each day. Ibid. The United States filed this action in 2000, claiming, among other things, that Duke violated the PSD provisions by doing this work without permits. Environmental Defense, North Carolina Sierra Club, and North Carolina Public Interest Research Group Citizen Lobby/Education Fund intervened as plaintiffs and filed a complaint charging similar violations. Duke moved for summary judgment, one of its positions being that none of the projects was a “major modification” requiring a PSD permit because none increased hourly rates of emissions. The District Court agreed with Duke’s reading of the 1980 PSD regulations. It reasoned that their express exclusion of “[a]n increase in the hours of operation” from the definition of a “physical change or change in the method of operation” implied that “post-project emissions levels must be calculated assuming” preproject hours of operation. 278 F. Supp. 2d 619, 640–641 (MDNC 2003). Consequently, the District Court said, a PSD “major modification” can occur “only if the project increases the hourly rate of emissions.” Id., at 641. The District Court found further support for its construction of the 1980 PSD regulations in one letter and one memorandum written in 1981 by EPA’s Director of the Division of Stationary Source Enforcement, Edward E. Reich. Id., at 641–642. The United States and intervenor-plaintiffs (collectively, plaintiffs) subsequently stipulated “that they do not contend that the projects at issue in this case caused an increase in the maximum hourly rate of emissions at any of Duke Energy’s units.” App. 504. Rather, their claim “is based solely on their contention that the projects would have been projected to result in an increased utilization of the units at issue.” Ibid. Duke, for its part, stipulated to plaintiffs’ right to appeal the District Court’s determination that projects resulting in greater operating hours are not “major modifications” triggering the PSD permit requirement, absent an increase in the hourly rate of emissions. The District Court then entered summary judgment for Duke on all PSD claims. The Court of Appeals for the Fourth Circuit affirmed, “albeit for somewhat different reasons.” 411 F. 3d, at 542. “[T]he language and various interpretations of the PSD regulations … are largely irrelevant to the proper analysis of this case,” reasoned the Court of Appeals, “because Congress’ decision to create identical statutory definitions of the term ‘modification’ ” in the NSPS and PSD provisions of the Clean Air Act “has affirmatively mandated that this term be interpreted identically” in the regulations promulgated under those provisions. Id., at 547, n. 3, 550. The Court of Appeals relied principally on the authority of Rowan Cos. v. United States, 452 U. S. 247, 250 (1981), where we held against the Government’s differing interpretations of the word “wages” in different tax provisions. 411 F. 3d, at 550. As the Court of Appeals saw it, Rowan establishes an “effectively irrebuttable” presumption that PSD regulations must contain the same conditions for a “modification” as the NSPS regulations, including an increase in the hourly rate of emissions.[Footnote 5] 411 F. 3d, at 550. As the Court of Appeals said, Duke had not initially relied on Rowan, see 411 F. 3d, at 547, n. 4, and when the Court sU. S.onte requested supplemental briefing on Rowan’s relevance, plaintiffs injected a new issue into the case. They argued that a claim that the 1980 PSD regulation exceeded statutory authority would be an attack on the validity of the regulation that could not be raised in an enforcement proceeding. See 42 U. S. C. §7607(b)(2). Under §307(b) of the Act, they said, judicial review for validity can be obtained only by a petition to the Court of Appeals for the District of Columbia Circuit, generally within 60 days of EPA’s rulemaking. 42 U. S. C. §7607(b). The Court of Appeals rejected this argument. “Our choice of this interpretation of the PSD regulations … is not an invalidation of those regulations,” it said, because “the PSD regulations can be interpreted” to require an increase in the hourly emissions rate as an element of a major “modification” triggering the permit requirement. 411 F. 3d, at 549, n. 7. To show that the 1980 PSD regulations are open to this construction, the Court of Appeals cited the conclusions of the District Court and the Reich opinions. We granted the petition for certiorari brought by intervenor-plaintiffs, 547 U. S. __ (2006), and now vacate. III The Court of Appeals understood that it was simply construing EPA’s 1980 PSD regulations in a permissible way that left them in harmony with their NSPS counterpart and, hence, the Act’s single definition of “modification.” The plaintiffs say that the Court of Appeals was rewriting the PSD regulations in a way neither required by the Act nor consistent with their own text. It is true that no precise line runs between a purposeful but permissible reading of the regulation adopted to bring it into harmony with the Court of Appeals’s view of the statute, and a determination that the regulation as written is invalid. But the latter occurred here, for the Court of Appeals’s efforts to trim the PSD regulations to match their different NSPS counterparts can only be seen as an implicit declaration that the PSD regulations were invalid as written. A In applying the 1980 PSD regulations to Duke’s conduct, the Court of Appeals thought that, by defining the term “modification” identically in its NSPS and PSD provisions, the Act required EPA to conform its PSD interpretation of that definition to any such interpretation it reasonably adhered to under NSPS. But principles of statutory construction are not so rigid. Although we presume that the same term has the same meaning when it occurs here and there in a single statute, the Court of Appeals mischaracterized that presumption as “effectively irrebuttable.” 411 F. 3d, at 550. We also understand that “[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in the same statute or even in the same section.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 433 (1932). Thus, the “natural presumption that identical words used in different parts of the same act are intended to have the same meaning … is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” Ibid. A given term in the same statute may take on distinct characters from association with distinct statutory objects calling for different implementation strategies. The point is the same even when the terms share a common statutory definition, if it is general enough, as we recognized in Robinson v. Shell Oil Co., 519 U. S. 337 (1997). There the question was whether the term “employees” in §704(a) of Title VII of the Civil Rights Act of 1964 covered former employees. Title VII expressly defined the term “employee,” 42 U. S. C. §2000e(f), but the definition was “consistent with either current or past employment,” 519 U. S., at 342, and we held that “each section” of Title VII “must be analyzed to determine whether the context gives the term a further meaning that would resolve the issue in dispute,” id., at 343–344. If Robinson were inconsistent with Rowan (on which the Court of Appeals relied), it would be significant that Robinson is the later case, but we read the two as compatible. In Rowan, the question was whether the value of meals and lodging given to employees by an employer for its own convenience should be counted in computing “wages” under the Federal Insurance Contributions Act (FICA), 26 U. S. C. §3101 et seq., and the Federal Unemployment Tax Act (FUTA), 26 U. S. C. §3301 et seq. Treasury Regulations made this value “includable in ‘wages’ as defined in FICA and FUTA, even though excludable from ‘wages’ under the substantially identical” statutory definition of “wages” for income-tax withholding purposes. 452 U. S., at 252. Although we ultimately held that the income tax treatment was the proper one across the board, we did not see it this way simply because a “substantially identical” definition of “wages” appeared in each of the different statutory provisions. Instead, we relied on a manifest “congressional concern for the interest of simplicity and ease of administration.” Id., at 255 (internal quotation marks omitted). The FICA and FUTA regulations fell for failing to “serve that interest,” id., at 257, not for defying definitional identity. In fact, in a setting much like Rowan, we recently declined to require uniformity when resolving ambiguities in identical statutory terms. In United States v. Cleveland Indians Baseball Co., 532 U. S. 200 (2001), we rejected the notion that using the phrase “wages paid” in both “the discrete taxation and benefits eligibility contexts” can, standing alone, “compel symmetrical construction,” id., at 213; we gave “substantial judicial deference” to the “longstanding,” “reasonable,” and differing interpretations adopted by the Internal Revenue Service in its regulations and Revenue Rulings. Id., at 218–220. There is, then, no “effectively irrebuttable” presumption that the same defined term in different provisions of the same statute must “be interpreted identically.” 411 F. 3d, at 550. Context counts. It is true that the Clean Air Act did not merely repeat the term “modification” or the same definition of that word in its NSPS and PSD sections; the PSD language referred back to the section defining “modification” for NSPS purposes. 42 U. S. C. §7479(2)(C). But that did not matter in Robinson, and we do not see the distinction as making any difference here. Nothing in the text or the legislative history of the technical amendments that added the cross-reference to NSPS suggests that Congress had details of regulatory implementation in mind when it imposed PSD requirements on modified sources; the cross-reference alone is certainly no unambiguous congressional code for eliminating the customary agency discretion to resolve questions about a statutory definition by looking to the surroundings of the defined term, where it occurs. See New York, 413 F. 3d, at 19 (“So far as appears, … [this] incorporatio[n] by reference [is] the equivalent of Congress’s having simply repeated in the [PSD] context the definitional language used before in the NSPS context”); compare 91 Stat. 745 (expressly incorporating in an unrelated provision of the 1977 amendments “the interpretative regulation of the [EPA] Administrator … published in 41 Federal Register 55524–30” with specified exceptions); New York, supra, at 19 (“Congress’s failure to use such an express incorporation of prior regulations for ‘modification’ cuts against” any suggestion that “Congress intended to incorporate” into the Act the “preexisting regulatory definition” of “modification”). Absent any iron rule to ignore the reasons for regulating PSD and NSPS “modifications” differently, EPA’s construction need do no more than fall within the limits of what is reasonable, as set by the Act’s common[Footnote 6] definition. B The Court of Appeals’s reasoning that the PSD regulations must conform to their NSPS counterparts led the court to read those PSD regulations in a way that seems to us too far a stretch for the language used. The 1980 PSD regulations on “modification” simply cannot be taken to track the agency’s regulatory definition under the NSPS. True, the 1980 PSD regulations may be no seamless narrative, but they clearly do not define a “major modification” in terms of an increase in the “hourly emissions rate.” On its face, the definition in the PSD regulations specifies no rate at all, hourly or annual, merely requiring a physical or operational change “that would result in a significant net emissions increase of any” regulated pollutant. 40 CFR §51.166(b)(2)(i). But even when a rate is mentioned, as in the regulatory definitions of the two terms, “significant” and “net emissions increase,” the rate is annual, not hourly. Each of the thresholds that quantify “significant” is described in “tons per year,” §51.166(b)(23)(i), and a “net emissions increase” is an “increase in actual emissions” measured against an “average” prior emissions rate of so many “tons per year.” §§51.166(b)(3) and (21)(ii). And what is further at odds with the idea that hourly rate is relevant is the mandate that “[a]ctual emissions shall be calculated using the unit’s actual operating hours,” §51.166(b)(21)(ii), since “actual emissions” must be measured in a manner that looks to the number of hours the unit is or probably will be actually running. What these provisions are getting at is a measure of actual operations averaged over time, and the regulatory language simply cannot be squared with a regime under which “hourly rate of emissions,” 411 F. 3d, at 550 (emphasis deleted), is dispositive. The reasons invoked by the Court of Appeals for its different view are no match for these textual differences. The appellate court cited two authorities ostensibly demonstrating that the 1980 PSD regulations “can be interpreted consistently” with the hourly emissions test, the first being the analysis of the District Court in this case. Id., at 549, n. 7. The District Court thought that an increase in the hourly emissions rate was necessarily a prerequisite to a PSD “major modification” because a provision of the 1980 PSD regulations excluded an “ ‘increase in the hours of operation or in the production rate’ ” from the scope of “ ‘[a] physical change or change in the method of operation.’ ” 278 F. Supp. 2d, at 640–641 (quoting 40 CFR §§51.166(b)(2)(iii)(f) and (3)(i)(a) (1987)). The District Court read this exclusion to require, in effect, that a source’s hours of operation “be held constant” when preproject emissions are being compared with postproject emissions for the purpose of calculating the “net emissions increase.” 278 F. Supp. 2d, at 640. We think this understanding of the 1980 PSD regulations makes the mistake of overlooking the difference between the two separate components of the regulatory definition of “major modification”: “[1] any physical change in or change in the method of operation of a major stationary source that [2] would result in a significant net emissions increase of any pollutant subject to regulation under the Act.” §51.166(b)(2)(i); cf. New York, 413 F. 3d, at 11 (“[The statutory] definition requires both a change—whether physical or operational—and a resulting increase in emissions of a pollutant” (emphasis in original)); Wisconsin Electric Power Co. v. Reilly, 893 F. 2d 901, 907 (CA7 1990) (same). The exclusion of “increase in … hours … or … production rate,” §51.166(b)(2)(iii)(f), speaks to the first of these components (“physical change … or change in … method,” §51.166(b)(2)(i)), but not to the second (“significant net emissions increase,” ibid.). As the preamble to the 1980 PSD regulations explains, forcing companies to obtain a PSD permit before they could simply adjust operating hours “would severely and unduly hamper the ability of any company to take advantage of favorable market conditions.” 45 Fed. Reg. 52704. In other words, a mere increase in the hours of operation, standing alone, is not a “physical change or change in the method of operation.” 40 CFR §51.166(b)(2)(iii). But the District Court took this language a step further. It assumed that increases in operating hours (resulting in emissions increases at the old rate per hour) must be ignored even if caused or enabled by an independent “physical change … or change in the method of operation.” §51.166(b)(2)(i). That reading, however, turns an exception to the first component of the definition into a mandate to ignore the very facts that would count under the second, which defines “net emissions increase” in terms of “actual emissions,” §51.166(b)(3), during “the unit’s actual operating hours,” §51.166(b)(21)(ii); see also 57 Fed. Reg. 32328 (1992) (“[A]n increase in emissions attributable to an increase in hours of operation or production rate which is the result of a construction-related activity is not excluded from [PSD] review …”).[Footnote 7] The Court of Appeals invoked one other source of support, the suggestion in the Reich opinions that a physical or operational change increasing a source’s hours of operation, without an increase in the hourly emissions rate, cannot be a PSD “major modification.” Duke continues to rely on those opinions here, asserting that “there are no contrary Agency pronouncements.” Brief for Respondent Duke 28. The Reich letters are not, however, heavy ammunition. Their persuasiveness is elusive, neither of them containing more than one brief and conclusory statement supporting Duke’s position. Nor, it seems, are they unembarrassed by any “contrary Agency pronouncements.” See, e.g., App. 258 (Memorandum of Don R. Clay, Acting Assistant EPA Administrator for Air and Radiation (Sept. 9, 1988) (when “plans to increase production rate or hours of operation are inextricably intertwined with the physical changes planned,” they are “precisely the type of change in hours or rate o[f] operation that would disturb a prior assessment of a source’s environmental impact and should have to undergo PSD review scrutiny” (internal quotation marks and alterations omitted)); see also 57 Fed. Reg. 32328. In any event, it answers the citation of the Reich letters to realize that an isolated opinion of an agency official does not authorize a court to read a regulation inconsistently with its language.[Footnote 8] In sum, the text of the 1980 PSD regulations on “modification” doomed the Court of Appeals’s attempt to equate those regulations with their NSPS counterpart. As a consequence, we have to see the Court of Appeals’s construction of the 1980 PSD regulations as an implicit invalidation of those regulations, a form of judicial review implicating the provisions of §307(b) of the Act, which limit challenges to the validity of a regulation during enforcement proceedings when such review “could have been obtained” in the Court of Appeals for the District of Columbia within 60 days of EPA rulemaking. See 42 U. S. C. §7607(b); see also United States v. Cinergy Corp., 458 F. 3d 705, 707–708 (CA7 2006); Wisconsin Electric Power Co., 893 F. 2d, at 914, n. 6. Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here. We have no occasion at this point to consider the significance of §307(b) ourselves. IV Finally, Duke assumes for argument that the Act and the 1980 regulations may authorize EPA to construe a PSD “modification” as it has done, but it charges that the agency has taken inconsistent positions and is now “retroactively targeting twenty years of accepted practice.” Brief for Respondent Duke 37; see also Brief for State of Alabama et al. as Amici Curiae. This claim, too, has not been tackled by the District Court or the Court of Appeals; to the extent it is not procedurally foreclosed, Duke may press it on remand. * * * 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. Footnote 1 EPA’s 1975 NSPS regulations did not specify that the “rate” means the maximum rate possible for the technology, see 40 CFR §§60.14(a)–(b) (1977), but the parties all read the regulations this way. See Brief for Petitioners 2; Brief for United States 7; Brief for Respondent Duke 32. At another point in the NSPS regulations, a different definition of “modification” appeared: “ ‘Modification’ means any physical change in, or change in the method of operation of, an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility,” §60.2(h); see also New York v. EPA, 413 F. 3d 3, 11–12 (CADC 2005) (per curiam) (“[N]either the 1975 regulation nor its preamble explained why EPA found it necessary to offer these two separate glosses on ‘modification’ ”). Footnote 2 Statutory PSD superseded a regulatory PSD scheme established by EPA in 1974. See 39 Fed. Reg. 42510. Under the regulations, the term “modification” was defined as “any physical change in, or change in the method of operation of, a stationary source which increases the emission rate of any pollutant for which a national standard has been promulgated.” Id., at 42514. Footnote 3 Although EPA had promulgated an earlier set of PSD regulations in 1978, 43 Fed. Reg. 26380, none of the parties argues that they govern the conduct at issue in this case. Footnote 4 The United States argues that some of Duke’s projects were governed by EPA’s PSD regulations promulgated in 1992 rather than the 1980 PSD regulations. Brief for United States 20, n. 4. Duke disputes this. Brief for Respondent Duke 14, n. 4. Because the United States acknowledges that the two sets of regulations “did not materially differ with respect to the legal question at issue here,” Brief for United States 20, n. 4, we will assume, as did the Court of Appeals and the District Court, that the 1980 PSD regulations control. 411 F. 3d, at 543, n. 1; United States v. Duke Energy Corp., 278 F. Supp. 2d 619, 629 (MDNC 2003). Footnote 5 The Court of Appeals noted that EPA was free to abandon the requirement that a “modification” be accompanied by an increase in the hourly rate of emissions, provided it did so for both the NSPS and PSD programs. 411 F. 3d, at 550–551. In other words, the Court of Appeals raised no question about the reasonableness of the definition of “modification” in the 1980 PSD regulations, apart from its deviation from the definition contained in NSPS regulations. Footnote 6 Duke argues that the 1977 amendments intended to incorporate EPA’s definition of “modification” under the 1974 regulatory PSD program. Brief for Respondent Duke 44; see also n. 2, supra. We find no support for this argument in the statutory text, which refers to the statutory NSPS definition rather than the regulatory PSD definition. Although Duke correctly points out that “Congress instructed that the bulk of the pre-existing rules ‘shall remain in effect,’ ” Brief for Respondent Duke 44 (quoting 42 U. S. C. §7478(a)), this instruction was a temporary measure “[u]ntil such time as an applicable implementation plan is in effect,” §7478(a). We therefore do not read this language as a restriction on EPA’s authority to interpret the statutory PSD provisions reasonably in a manner that departs from the 1974 regulations. Duke also invokes Bragdon v. Abbott, 524 U. S. 624, 631 (1998), for the proposition that “use of the pre-existing term ‘modification’ ‘carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.’ ” Brief for Respondent Duke 44. But this reasoning is unavailing here, given the existence of at least three distinct regulatory definitions of “modification” at the time of the 1977 amendments. See supra, at 2–3, and nn. 1, 2. Footnote 7 Two Courts of Appeals agree. See United States v. Cinergy Corp., 458 F. 3d 705, 708 (CA7 2006) (“[M]erely running the plant closer to its maximum capacity is not a major modification because it does not involve either a physical change or a change in the method of operation. If, however, a physical change enables the plant to increase its output, then, according to the EPA’s interpretation, the exclusion for merely operating the plant for longer hours is inapplicable” (emphasis in original)); Wisconsin Electric Power Co. v. Reilly, 893 F. 2d 901, 916, n. 11 (CA7 1990) (the regulatory exclusion for increases in the hours of operation “was provided to allow facilities to take advantage of fluctuating market conditions, not construction or modification activity”); Puerto Rican Cement Co. v. EPA, 889 F. 2d 292, 298 (CA1 1989) (“[T]here is no logical contradiction in rules that, on the one hand, permit firms using existing capacity simply to increase their output and, on the other, use the potential output of new capacity as a basis for calculating an increase in emissions levels” (emphasis in original)). Footnote 8 Duke now offers an alternative argument for applying the hourly emissions test for the PSD program: before a project can become a “major modification” under the PSD regulations, 40 CFR §51.166(b)(2)(i) (1987), it must meet the definition of “modification” under the NSPS regulations, §60.14(a). That sounds right, but the language of the regulations does not support it. For example, it would be superfluous for PSD regulations to require a “major modification” to be “a physical change in or change in the method of operation,” §51.166(b)(2)(i), if they presupposed that the NSPS definition of “modification,” which contains the same prerequisite, §60.14(a), had already been satisfied. The NSPS and PSD regulations are complementary and not related as set to subset.
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551.US.449
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Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), makes it a federal crime for a corporation to use its general treasury funds to pay for any “electioneering communication,” 2 U. S. C. §441b(b)(2), which BCRA defines as any broadcast that refers to a candidate for federal office and is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where that candidate is running, §434(f)(3)(A). In McConnell v. Federal Election Comm’n, 540 U. S. 93, this Court upheld §203 against a First Amendment facial challenge even though the section encompassed not only campaign speech, or “express advocacy” promoting a candidate’s election or defeat, but also “issue advocacy,” or speech about public issues more generally, that also mentions such a candidate. The Court concluded there was no overbreadth concern to the extent the speech in question was the “functional equivalent” of express advocacy. Id., at 204–205, 206. On July 26, 2004, appellee Wisconsin Right to Life, Inc. (WRTL), began broadcasting advertisements declaring that a group of Senators was filibustering to delay and block federal judicial nominees and telling voters to contact Wisconsin Senators Feingold and Kohl to urge them to oppose the filibuster. WRTL planned to run the ads throughout August 2004 and finance them with its general treasury funds. Recognizing, however, that as of August 15, 30 days before the Wisconsin primary, the ads would be illegal “electioneering communication[s]” under BCRA §203, but believing that it nonetheless had a First Amendment right to broadcast them, WRTL filed suit against the Federal Election Commission (FEC), seeking declaratory and injunctive relief and alleging that §203’s prohibition was unconstitutional as applied to the three ads in question, as well as any materially similar ads WRTL might run in the future. Just before the BCRA blackout, the three-judge District Court denied a preliminary injunction, concluding that McConnell’s reasoning that §203 was not facially overbroad left no room for such “as-applied” challenges. WRTL did not run its ads during the blackout period, and the court subsequently dismissed the complaint. This Court vacated that judgment, holding that McConnell “did not purport to resolve future as-applied challenges” to §203. Wisconsin Right to Life, Inc. v. Federal Election Comm’n (WRTL I), 546 U. S. 410, 412. On remand, the District Court granted WRTL summary judgment, holding §203 unconstitutional as applied to the three ads. The court first found that adjudication was not barred by mootness because the controversy was capable of repetition, yet evading review. On the merits, it concluded that the ads were genuine issue ads, not express advocacy or its “functional equivalent” under McConnell, and held that no compelling interest justified BCRA’s regulation of such ads. Held: The judgment is affirmed. 466 F. Supp. 2d 195, affirmed. The Chief Justice delivered the opinion of the Court with respect to Parts I and II, concluding that the Court has jurisdiction to decide these cases. The FEC argues that the cases are moot because the 2004 election has passed and WRTL neither asserts a continuing interest in running its ads nor identifies any reason to believe that a significant dispute over Senate filibusters of judicial nominees will occur in the foreseeable future. These cases, however, fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review. That exception applies where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again,” Spencer v. Kemna, 523 U. S. 1, 17. Both circumstances are present here. First, it would be unreasonable to expect that WRTL could have obtained complete judicial review of its claims in time to air its ads during the BCRA blackout periods. Indeed, two BCRA blackout periods have passed during the pendency of this action. Second, there exists a reasonable expectation that the same “controversy” involving the same party will recur: WRTL has credibly claimed that it plans to run materially similar targeted ads during future blackout periods, and there is no reason to believe that the FEC will refrain from prosecuting future BCRA violations. Pp. 7–10. The Chief Justice, joined by Justice Alito, concluded that BCRA §203 is unconstitutional as applied to the ads at issue in these cases. Pp. 10–29. 1. The speech at issue is not the “functional equivalent” of express campaign speech. Pp. 10–22. (a) Appellants are wrong in arguing that WRTL has the burden of demonstrating that §203 is unconstitutional. Because §203 burdens political speech, it is subject to strict scrutiny, see, e.g., McConnell, supra, at 205, under which the Government must prove that applying BCRA to WRTL’s ads furthers a compelling governmental interest and is narrowly tailored to achieve that interest, see First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786. Given that McConnell, supra, at 206, already ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent, the FEC’s burden is not onerous insofar as these ads fit this description. Pp. 10–11. (b) Contrary to the FEC’s contention, McConnell, 540 U. S., at 205–206, did not establish an intent-and-effect test for determining if a particular ad is the functional equivalent of express advocacy. Indeed, McConnell did not adopt any test for future as-applied challenges, but simply grounded its analysis in the evidentiary record, which included two key studies that separated ads based on whether they were intended to, or had the effect of, supporting candidates for federal office. Id., at 308–309. More importantly, Buckley v. Valeo, 424 U. S. 1, 14, 43–44, rejected an intent-and-effect test for distinguishing between discussions of issues and candidates, and McConnell did not purport to overrule Buckley on this point—or even address what Buckley had to say on the subject. Pp. 11–15. (c) Because WRTL’s ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy, and therefore fall outside McConnell’s scope. To safeguard freedom of speech on public issues, the proper standard for an as-applied challenge to BCRA §203 must be objective, focusing on the communication’s substance rather than on amorphous considerations of intent and effect. See Buckley, supra, at 43–44. It must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation. See Virginia v. Hicks, 539 U. S. 113, 119. And it must eschew “the open-ended rough-and-tumble of factors,” which “invit[es] complex argument in a trial court and a virtually inevitable appeal.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547. In short, it must give the benefit of any doubt to protecting rather than stifling speech. See New York Times Co. v. Sullivan, 376 U. S. 254, 269–270. In light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. WRTL’s three ads are plainly not the functional equivalent of express advocacy under this test. First, their content is consistent with that of a genuine issue ad: They focus and take a position on a legislative issue and exhort the public to adopt that position and to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: They do not mention an election, candidacy, political party, or challenger; and they take no position on a candidate’s character, qualifications, or fitness for office. Pp. 15–22. 2. Because WRTL’s ads are not express advocacy or its functional equivalent, and because appellants identify no interest sufficiently compelling to justify burdening WRTL’s speech, BCRA §203 is unconstitutional as applied to the ads. The section can be constitutionally applied only if it is narrowly tailored to further a compelling interest. E.g., McConnell, supra, at 205. None of the interests that might justify regulating WRTL’s ads are sufficiently compelling. Although the Court has long recognized “the governmental interest in preventing corruption and the appearance of corruption” in election campaigns, Buckley, 424 U. S., at 45, it has invoked this interest as a reason for upholding contribution limits, id., at 26–27, and suggested that it might also justify limits on electioneering expenditures posing the same dangers as large contributions, id., at 45. McConnell arguably applied this interest to ads that were the “functional equivalent” of express advocacy. See 540 U. S., at 204–206. But to justify regulation of WRTL’s ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Issue ads like WRTL’s are not equivalent to contributions, and the corruption interest cannot justify regulating them. A second possible compelling interest lies in addressing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 660. McConnell held that this interest justifies regulating the “functional equivalent” of campaign speech, 540 U. S., at 205–206. This interest cannot be extended further to apply to genuine issue ads like WRTL’s, see, e.g., id., at 206, n. 88, because doing so would call into question this Court’s holdings that the corporate identity of a speaker does not strip corporations of all free speech rights. WRTL I reinforced the validity of this point by holding §203 susceptible to as-applied challenges. 546 U. S., at 411–412. Pp. 23–28. 3. These cases present no occasion to revisit McConnell’s holding that a corporation’s express advocacy of a candidate or his opponent shortly before an election may be prohibited, along with the functional equivalent of such express advocacy. But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban—the question here—the Court should give the benefit of the doubt to speech, not censorship. Pp. 28–29. Justice Scalia, joined by Justice Kennedy and Justice Thomas, agreed that the Court has jurisdiction in these cases and concurred in the Court’s judgment because he would overrule that part of McConnell v. Federal Election Comm’n, 540 U. S. 93, upholding §203(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA). Pp. 4–23. 1. The pertinent case law begins with Buckley v. Valeo, 424 U. S. 1, in which the Court held, inter alia, that a federal limitation on campaign expenditures not made in coordination with a candidate’s campaign (contained in the Federal Election Campaign Act of 1971 (FECA)) was unconstitutional, id., at 39–51. In light of vagueness concerns, the Court narrowly construed the independent-expenditure provision to cover only express advocacy of the election or defeat of a clearly identified candidate for federal office by use of such magic words “as ‘vote for,’ ‘elect,’ … ‘vote against,’ ‘defeat,’ ‘reject.’ ” Id., at 44, and n. 52. This narrowing construction excluded so-called “issue advocacy” referring to a clearly identified candidate’s position on an issue, but not expressly advocating his election or defeat. Even as narrowly construed, however, the Court struck the provision down. Id., at 45–46. Despite Buckley, some argued that independent expenditures by corporations should be treated differently. A post-Buckley case, First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776–777, struck down, on First Amendment grounds, a state statute prohibiting corporations from spending money in connection with a referendum. The Court strayed far from these principles, however, in Austin v. Michigan Chamber of Commerce, 494 U. S. 652, upholding state restrictions on corporations’ independent expenditures in support of, or in opposition to, candidates for state office, id., at 654–655. Austin was wrongly decided, but at least it was limited to express advocacy. Nonexpress advocacy was presumed to remain protected under Buckley and Bellotti, even when engaged in by corporations, until McConnell. McConnell held, inter alia, that the compelling governmental interest supporting restrictions on corporate expenditures for express advocacy—i.e., Austin’s perceived “corrosive and distorting effects of immense aggregations of [corporate] wealth,” 540 U. S., at 205—also justified extending those restrictions to ads run during the BCRA blackout period “to the extent … [they] are the functional equivalent of express advocacy,” id., at 206 (emphasis added). McConnell upheld BCRA §203(a) against a facial challenge. Subsequently, in Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. 410, 411–412, the Court held that McConnell did not foreclose as-applied challenges to §203. Pp. 4–10. 2. McConnell’s holding concerning §203 was wrong. The answer to whether WRTL meets the standard for prevailing in an as-applied challenge requires the Court to articulate the standard. The most obvious standard is McConnell’s, which asks whether an ad is the “functional equivalent of express advocacy,” 540 U. S., at 206. The fundamental and inescapable problem with this test, with the principal opinion’s susceptible-of-no-other-reasonable-interpretation standard, and with other similar tests is that each is impermissibly vague and thus ineffective to vindicate the fundamental First Amendment rights at issue. Buckley itself compelled the conclusion that such tests fall short when it narrowed the statutory language there at issue to cover only advertising that used the magic words of express advocacy. 424 U. S., at 43–44. The only plausible explanation for Buckley’s “highly strained” reading of FECA, McConnell, supra, at 280, is that the Court there eschewed narrowing constructions that would have been more faithful to FECA’s text and more effective at capturing campaign speech because those tests were all too vague. If Buckley foreclosed such vagueness in a statutory test, it also must foreclose such vagueness in an as-applied test. Yet any clear rule that would protect all genuine issue ads would cover such a substantial number of ads prohibited by §203 that §203 would be rendered substantially overbroad. Thus, McConnell (which presupposed the availability of as-applied challenges) was mistaken. Pp. 10–18. 3. Stare decisis would not prevent the Court from overruling McConnell’s §203 holding. This Court’s “considered practice” is not to apply that principle “as rigidly in constitutional as in nonconstitutional cases,” Glidden Co. v. Zdanok, 370 U. S. 530, 543, and it has not hesitated to overrule a decision offensive to the First Amendment that was decided just a few years earlier, see West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642. Pp. 19–22. Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Parts III and IV, in which Alito, J., joined. Alito, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Kennedy and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Together with No. 06–970, McCain, United States Senator, et al. v. Wisconsin Right to Life, Inc., also on appeal from the same court.
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(WRTL I). We now confront such an as-applied challenge. Resolving it requires us first to determine whether the speech at issue is the “functional equivalent” of speech expressly advocating the election or defeat of a candidate for federal office, or instead a “genuine issue a[d].” McConnell, supra, at 206, and n. 88. We have long recognized that the distinction between campaign advocacy and issue advocacy “may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions.” Buckley v. Valeo, 424 U. S. 1, 42 (1976) (per curiam). Our development of the law in this area requires us, however, to draw such a line, because we have recognized that the interests held to justify the regulation of campaign speech and its “functional equivalent” “might not apply” to the regulation of issue advocacy. McConnell, supra, at 206, and n. 88. In drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it. We conclude that the speech at issue in this as-applied challenge is not the “functional equivalent” of express campaign speech. We further conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases. I Prior to BCRA, corporations were free under federal law to use independent expenditures to engage in political speech so long as that speech did not expressly advocate the election or defeat of a clearly identified federal candidate. See Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 249 (1986) (MCFL); Buckley, supra, at 44–45; 2 U. S. C. §§441b(a), (b)(2) (2000 ed. and Supp. IV). BCRA significantly cut back on corporations’ ability to engage in political speech. BCRA §203, at issue in these cases, makes it a crime for any labor union or incorporated entity—whether the United Steelworkers, the American Civil Liberties Union, or General Motors—to use its general treasury funds to pay for any “electioneering communication.” §441b(b)(2) (2000 ed., Supp. IV). BCRA’s definition of “electioneering communication” is clear and expansive. It encompasses any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running for office. §434(f)(3)(A).[Footnote 1] Appellee Wisconsin Right to Life, Inc. (WRTL), is a nonprofit, nonstock, ideological advocacy corporation recognized by the Internal Revenue Service as tax exempt under §501(c)(4) of the Internal Revenue Code. On July 26, 2004, as part of what it calls a “grassroots lobbying campaign,” Brief for Appellee 8, WRTL began broadcasting a radio advertisement entitled “Wedding.” The transcript of “Wedding” reads as follows: “ ‘PASTOR: And who gives this woman to be married to this man? “ ‘BRIDE’S FATHER: Well, as father of the bride, I certainly could. But instead, I’d like to share a few tips on how to properly install drywall. Now you put the drywall up … “ ‘VOICE-OVER: Sometimes it’s just not fair to delay an important decision. “ ‘But in Washington it’s happening. A group of Senators is using the filibuster delay tactic to block federal judicial nominees from a simple “yes” or “no” vote. So qualified candidates don’t get a chance to serve. “ ‘It’s politics at work, causing gridlock and backing up some of our courts to a state of emergency. “ ‘Contact Senators Feingold and Kohl and tell them to oppose the filibuster. “ ‘Visit: BeFair.org “ ‘Paid for by Wisconsin Right to Life (befair.org), which is responsible for the content of this advertising and not authorized by any candidate or candidate’s committee.’ ” 466 F. Supp. 2d 195, 198, n. 3 (DC 2006). On the same day, WRTL aired a similar radio ad entitled “Loan.”[Footnote 2] It had also invested treasury funds in producing a television ad entitled “Waiting,”[Footnote 3] which is similar in substance and format to “Wedding” and “Loan.” WRTL planned on running “Wedding,” “Waiting,” and “Loan” throughout August 2004 and financing the ads with funds from its general treasury. It recognized, however, that as of August 15, 30 days prior to the Wisconsin primary, the ads would be illegal “electioneering communication[s]” under BCRA §203. Believing that it nonetheless possessed a First Amendment right to broadcast these ads, WRTL filed suit against the Federal Election Commission (FEC) on July 28, 2004, seeking declaratory and injunctive relief before a three-judge District Court. See note following 2 U. S. C. §437h (2000 ed., Supp. IV); 28 U. S. C. §2284. WRTL alleged that BCRA’s prohibition on the use of corporate treasury funds for “electioneering communication[s]” as defined in the Act is unconstitutional as applied to “Wedding,” “Loan,” and “Waiting,” as well as any materially similar ads it might seek to run in the future. Just before the BCRA blackout period was to begin, the District Court denied a preliminary injunction, concluding that “the reasoning of the McConnell Court leaves no room for the kind of ‘as applied’ challenge WRTL propounds before us.” App. to Juris. Statement 52a. In response to this ruling, WRTL did not run its ads during the blackout period. The District Court subsequently dismissed WRTL’s complaint. See id., at 47a–48a (“WRTL’s ‘as-applied’ challenge to BCRA [§203] is foreclosed by the Supreme Court’s decision in McConnell”). On appeal, we vacated the District Court’s judgment, holding that McConnell “did not purport to resolve future as-applied challenges” to BCRA §203, and remanded “for the District Court to consider the merits of WRTL’s as-applied challenge in the first instance.” WRTL I, 546 U. S., at 412. On remand, after allowing four Members of Congress to intervene as defendants, the three-judge District Court granted summary judgment for WRTL, holding BCRA §203 unconstitutional as applied to the three advertisements WRTL planned to run during the 2004 blackout period. The District Court first found adjudication of the dispute not barred by mootness because the controversy was “ ‘capable of repetition, yet evading review.’ ” 466 F. Supp. 2d, at 202. Turning to the merits, the court began by noting that under McConnell, BCRA could constitutionally proscribe “express advocacy”—defined as ads that expressly advocate the election or defeat of a candidate for federal office—and the “functional equivalent” of such advocacy. 466 F. Supp. 2d, at 204. Stating that it was limiting its inquiry to “language within the four corners” of the ads, id., at 207, the District Court concluded that the ads were not express advocacy or its functional equivalent, but instead “genuine issue ads.” Id., at 205–208. Then, reaching a question “left open in McConnell,” the court held that no compelling interest justified BCRA’s regulation of genuine issue ads such as those WRTL sought to run. Id., at 208–210. One judge dissented, contending that the majority’s “plain facial analysis of the text in WRTL’s 2004 advertisements” ignored “the context in which the text was developed.” Id., at 210 (opinion of Roberts, J.). In that judge’s view, a contextual analysis of the ads revealed “deep factual rifts between the parties concerning the purpose and intended effects of the ads” such that neither side was entitled to summary judgment. Id., at 210, 211. The FEC and intervenors filed separate notices of appeal and jurisdictional statements. We consolidated the two appeals and set the matter for briefing and argument, postponing further consideration of jurisdiction to the hearing on the merits. 549 U. S. ___ (2007). II Article III’s “case-or-controversy requirement subsists through all stages of federal judicial proceedings . . . . [I]t is not enough that a dispute was very much alive when suit was filed.” Lewis v. Continental Bank Corp., 494 U. S. 472, 477 (1990). Based on these principles, the FEC argues (though the intervenors do not) that these cases are moot because the 2004 election has passed and WRTL “does not assert any continuing interest in running [its three] advertisements, nor does it identify any reason to believe that a significant dispute over Senate filibusters of judicial nominees will occur in the foreseeable future.” Brief for Appellant FEC 21. As the District Court concluded, however, these cases fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review. See Los Angeles v. Lyons, 461 U. S. 95, 109 (1983); Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911). The exception applies where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Spencer v. Kemna, 523 U. S. 1, 17 (1998) (internal quotation marks and brackets omitted). Both circumstances are present here. As the District Court found, it would be “entirely unreasonable . . . to expect that [WRTL] could have obtained complete judicial review of its claims in time for it to air its ads” during the BCRA blackout periods. 466 F. Supp. 2d, at 202. The FEC contends that the 2-year window between elections provides ample time for parties to litigate their rights before each BCRA blackout period. But groups like WRTL cannot predict what issues will be matters of public concern during a future blackout period. In these cases, WRTL had no way of knowing well in advance that it would want to run ads on judicial filibusters during the BCRA blackout period. In any event, despite BCRA’s command that the cases be expedited “to the greatest possible extent,” §403(a)(4), 116 Stat. 113, note following 2 U. S. C. §437h (2000 ed., Supp. IV), two BCRA blackout periods have come and gone during the pendency of this action. “[A] decision allowing the desired expenditures would be an empty gesture unless it afforded appellants sufficient opportunity prior to the election date to communicate their views effectively.” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 774 (1978). The second prong of the “capable of repetition” exception requires a “ ‘reasonable expectation’ ” or a “ ‘demonstrated probability’ ” that “the same controversy will recur involving the same complaining party.” Murphy v. Hunt, 455 U. S. 478, 482 (1982) (per curiam). Our cases find the same controversy sufficiently likely to recur when a party has a reasonable expectation that it “will again be subjected to the alleged illegality,” Lyons, supra, at 109, or “will be subject to the threat of prosecution” under the challenged law, Bellotti, supra, at 774–775 (citing Weinstein v. Bradford, 423 U. S. 147, 149 (1975) (per curiam)). The FEC argues that in order to prove likely recurrence of the same controversy, WRTL must establish that it will run ads in the future sharing all “the characteristics that the district court deemed legally relevant.” Brief for Appellant FEC 23. The FEC asks for too much. We have recognized that the “ ‘capable of repetition, yet evading review’ doctrine, in the context of election cases, is appropriate when there are ‘as applied’ challenges as well as in the more typical case involving only facial attacks.” Storer v. Brown, 415 U. S. 724, 737, n. 8 (1974). Requiring repetition of every “legally relevant” characteristic of an as-applied challenge—down to the last detail—would effectively overrule this statement by making this exception unavailable for virtually all as-applied challenges. History repeats itself, but not at the level of specificity demanded by the FEC. Here, WRTL credibly claimed that it planned on running “ ‘materially similar’ ” future targeted broadcast ads mentioning a candidate within the blackout period, 466 F. Supp. 2d, at 197, and there is no reason to believe that the FEC will “refrain from prosecuting violations” of BCRA, Bellotti, supra, at 775. Under the circumstances, particularly where WRTL sought another preliminary injunction based on an ad it planned to run during the 2006 blackout period, see 466 F. Supp. 2d, at 203, n. 15, we hold that there exists a reasonable expectation that the same controversy involving the same party will recur. We have jurisdiction to decide these cases. III WRTL rightly concedes that its ads are prohibited by BCRA §203. Each ad clearly identifies Senator Feingold, who was running (unopposed) in the Wisconsin Democratic primary on September 14, 2004, and each ad would have been “targeted to the relevant electorate,” see 2 U. S. C. §434(f)(3)(C) (2000 ed., Supp. IV), during the BCRA blackout period. WRTL further concedes that its ads do not fit under any of BCRA’s exceptions to the term “electioneering communication.” See §434(f)(3)(B). The only question, then, is whether it is consistent with the First Amendment for BCRA §203 to prohibit WRTL from running these three ads. A Appellants contend that WRTL should be required to demonstrate that BCRA is unconstitutional as applied to the ads. Reply Brief for Appellant Sen. John McCain et al. in No. 06–970, p. 5, n. 4; Brief for Appellant FEC 34. After all, appellants reason, McConnell already held that BCRA §203 was facially valid. These cases, however, present the separate question whether §203 may constitutionally be applied to these specific ads. Because BCRA §203 burdens political speech, it is subject to strict scrutiny. See McConnell, 540 U. S., at 205; Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 658 (1990); MCFL, 479 U. S., at 252 (plurality opinion); Bellotti, supra, at 786; Buckley, 424 U. S., at 44–45. Under strict scrutiny, the Government must prove that applying BCRA to WRTL’s ads furthers a compelling interest and is narrowly tailored to achieve that interest. See Bellotti, supra, at 786 (“Especially where, as here, a prohibition is directed at speech itself, and the speech is intimately related to the process of governing, … ‘the burden is on the government to show the existence of [a compelling] interest’ ” (footnote omitted)). The strict scrutiny analysis is, of course, informed by our precedents. This Court has already ruled that BCRA survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent. McConnell, supra, at 206. So to the extent the ads in these cases fit this description, the FEC’s burden is not onerous; all it need do is point to McConnell and explain why it applies here. If, on the other hand, WRTL’s ads are not express advocacy or its equivalent, the Government’s task is more formidable. It must then demonstrate that banning such ads during the blackout periods is narrowly tailored to serve a compelling interest. No precedent of this Court has yet reached that conclusion. B The FEC, intervenors, and the dissent below contend that McConnell already established the constitutional test for determining if an ad is the functional equivalent of express advocacy: whether the ad is intended to influence elections and has that effect. See, e.g., 466 F. Supp. 2d, at 214 (opinion of Roberts, J.). Here is the relevant portion of our opinion in McConnell: “[P]laintiffs argue that the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications. “This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect.” 540 U. S., at 205–206. WRTL and the District Court majority, on the other hand, claim that McConnell did not adopt any test as the standard for future as-applied challenges. We agree. McConnell’s analysis was grounded in the evidentiary record before the Court. Two key studies in the McConnell record constituted “the central piece of evidence marshaled by defenders of BCRA’s electioneering communication provisions in support of their constitutional validity.” McConnell v. FEC, 251 F. Supp. 2d 176, 307, 308 (DC 2003) (opinion of Henderson, J.) (internal quotation marks and brackets omitted). Those studies asked “student coders” to separate ads based on whether the students thought the “purpose” of the ad was “to provide information about or urge action on a bill or issue,” or “to generate support or opposition for a particular candidate.” Id., at 308–309 (internal quotation marks omitted; emphasis deleted); see Brief for Appellee 38. The studies concluded “ ‘that BCRA’s definition of Electioneering Communications accurately captures those ads that have the purpose or effect of supporting candidates for election to office.” Ibid. (emphasis in original). When the McConnell Court considered the possible facial overbreadth of §203, it looked to the studies in the record analyzing ads broadcast during the blackout periods, and those studies had classified the ads in terms of intent and effect. The Court’s assessment was accordingly phrased in the same terms, which the Court regarded as sufficient to conclude, on the record before it, that the plaintiffs had not “carried their heavy burden of proving” that §203 was facially overbroad and could not be enforced in any circumstances. 540 U. S., at 207. The Court did not explain that it was adopting a particular test for determining what constituted the “functional equivalent” of express advocacy. The fact that the student coders who helped develop the evidentiary record before the Court in McConnell looked to intent and effect in doing so, and that the Court dealt with the record on that basis in deciding the facial overbreadth claim, neither compels nor warrants accepting that same standard as the constitutional test for separating, in an as-applied challenge, political speech protected under the First Amendment from that which may be banned.[Footnote 4] More importantly, this Court in Buckley had already rejected an intent-and-effect test for distinguishing between discussions of issues and candidates. See 424 U. S., at 43–44. After noting the difficulty of distinguishing between discussion of issues on the one hand and advocacy of election or defeat of candidates on the other, the Buckley Court explained that analyzing the question in terms “ ‘of intent and of effect’ ” would afford “ ‘no security for free discussion.’ ” Id., at 43 (quoting Thomas v. Collins, 323 U. S. 516, 535 (1945)). It therefore rejected such an approach, and McConnell did not purport to overrule Buckley on this point—or even address what Buckley had to say on the subject. For the reasons regarded as sufficient in Buckley, we decline to adopt a test for as-applied challenges turning on the speaker’s intent to affect an election. The test to distinguish constitutionally protected political speech from speech that BCRA may proscribe should provide a safe harbor for those who wish to exercise First Amendment rights. The test should also “reflec[t] our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ ” Buckley, supra, at 14 (quoting New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)). A test turning on the intent of the speaker does not remotely fit the bill. Far from serving the values the First Amendment is meant to protect, an intent-based test would chill core political speech by opening the door to a trial on every ad within the terms of §203, on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad covered by BCRA if its only defense to a criminal prosecution would be that its motives were pure. An intent-based standard “blankets with uncertainty whatever may be said,” and “offers no security for free discussion.” Buckley, supra, at 43 (internal quotation marks omitted). The FEC does not disagree. In its brief filed in the first appeal in this litigation, it argued that a “constitutional standard that turned on the subjective sincerity of a speaker’s message would likely be incapable of workable application; at a minimum, it would invite costly, fact-dependent litigation.” Brief for Appellee in WRTL I, O. T. 2005, No. 04–1581, p. 39.[Footnote 5] A test focused on the speaker’s intent could lead to the bizarre result that identical ads aired at the same time could be protected speech for one speaker, while leading to criminal penalties for another. See M. Redish, Money Talks: Speech, Economic Power, and the Values of Democracy 91 (2001) (“[U]nder well-accepted First Amendment doctrine, a speaker’s motivation is entirely irrelevant to the question of constitutional protection”). “First Amendment freedoms need breathing space to survive.” NAACP v. Button, 371 U. S. 415, 433 (1963). An intent test provides none. Buckley also explains the flaws of a test based on the actual effect speech will have on an election or on a particular segment of the target audience. Such a test “ ‘puts the speaker … wholly at the mercy of the varied understanding of his hearers.’ ” 424 U. S., at 43. It would also typically lead to a burdensome, expert-driven inquiry, with an indeterminate result. Litigation on such a standard may or may not accurately predict electoral effects, but it will unquestionably chill a substantial amount of political speech. C “The freedom of speech … guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” Bellotti, 435 U. S., at 776 (internal quotation marks omitted). See Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y., 447 U. S. 530, 534 (1980). To safeguard this liberty, the proper standard for an as-applied challenge to BCRA §203 must be objective, focusing on the substance of the communication rather than amorphous considerations of intent and effect. See Buckley, supra, at 43–44. It must entail minimal if any discovery, to allow parties to resolve disputes quickly without chilling speech through the threat of burdensome litigation. See Virginia v. Hicks, 539 U. S. 113, 119 (2003). And it must eschew “the open-ended rough-and-tumble of factors,” which “invit[es] complex argument in a trial court and a virtually inevitable appeal.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547 (1995). In short, it must give the benefit of any doubt to protecting rather than stifling speech. See New York Times Co. v. Sullivan, supra, at 269–270. In light of these considerations, a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Under this test, WRTL’s three ads are plainly not the functional equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate’s character, qualifications, or fitness for office. Despite these characteristics, appellants assert that the content of WRTL’s ads alone betrays their electioneering nature. Indeed, the FEC suggests that any ad covered by §203 that includes “an appeal to citizens to contact their elected representative” is the “functional equivalent” of an ad saying defeat or elect that candidate. Brief for Appellant FEC 31; see Brief for Appellant Sen. John McCain et al. in No. 06–970, pp. 21–23 (hereinafter McCain Brief). We do not agree. To take just one example, during a blackout period the House considered the proposed Universal National Service Act. See App. to Brief for American Center for Law and Justice et al. as Amicus Curiae B–3. There would be no reason to regard an ad supporting or opposing that Act, and urging citizens to contact their Representative about it, as the equivalent of an ad saying vote for or against the Representative. Issue advocacy conveys information and educates. An issue ad’s impact on an election, if it exists at all, will come only after the voters hear the information and choose—uninvited by the ad—to factor it into their voting decisions.[Footnote 6] The FEC and intervenors try to turn this difference to their advantage, citing McConnell’s statements “that the most effective campaign ads, like the most effective commercials for products . . . avoid the [Buckley] magic words [expressly advocating the election or defeat of a candidate],” 540 U. S., at 127, and that advertisers “would seldom choose to use such words even if permitted,” id., at 193. See McCain Brief 19. An expert for the FEC in these cases relied on those observations to argue that WRTL’s ads are especially effective electioneering ads because they are “subtl[e],” focusing on issues rather than simply exhorting the electorate to vote against Senator Feingold. App. 56–57. Rephrased a bit, the argument perversely maintains that the less an issue ad resembles express advocacy, the more likely it is to be the functional equivalent of express advocacy. This “heads I win, tails you lose” approach cannot be correct. It would effectively eliminate First Amendment protection for genuine issue ads, contrary to our conclusion in WRTL I that as-applied challenges to §203 are available, and our assumption in McConnell that “the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads,” 540 U. S., at 206, n. 88. Under appellants’ view, there can be no such thing as a genuine issue ad during the blackout period—it is simply a very effective electioneering ad. Looking beyond the content of WRTL’s ads, the FEC and intervenors argue that several “contextual” factors prove that the ads are the equivalent of express advocacy. First, appellants cite evidence that during the same election cycle, WRTL and its Political Action Committee (PAC) actively opposed Senator Feingold’s reelection and identified filibusters as a campaign issue. This evidence goes to WRTL’s subjective intent in running the ads, and we have already explained that WRTL’s intent is irrelevant in an as-applied challenge. Evidence of this sort is therefore beside the point, as it should be—WRTL does not forfeit its right to speak on issues simply because in other aspects of its work it also opposes candidates who are involved with those issues. Next, the FEC and intervenors seize on the timing of WRTL’s ads. They observe that the ads were to be aired near elections but not near actual Senate votes on judicial nominees, and that WRTL did not run the ads after the elections. To the extent this evidence goes to WRTL’s subjective intent, it is again irrelevant. To the extent it nonetheless suggests that the ads should be interpreted as express advocacy, it falls short. That the ads were run close to an election is unremarkable in a challenge like this. Every ad covered by BCRA §203 will by definition air just before a primary or general election. If this were enough to prove that an ad is the functional equivalent of express advocacy, then BCRA would be constitutional in all of its applications. This Court unanimously rejected this contention in WRTL I. That the ads were run shortly after the Senate had recessed is likewise unpersuasive. Members of Congress often return to their districts during recess, precisely to determine the views of their constituents; an ad run at that time may succeed in getting more constituents to contact the Representative while he or she is back home. In any event, a group can certainly choose to run an issue ad to coincide with public interest rather than a floor vote. Finally, WRTL did not resume running its ads after the BCRA blackout period because, as it explains, the debate had changed. Brief for Appellee 16. The focus of the Senate was on whether a majority would vote to change the Senate rules to eliminate the filibuster—not whether individual Senators would continue filibustering. Given this change, WRTL’s decision not to continue running its ads after the blackout period does not support an inference that the ads were the functional equivalent of electioneering. The last piece of contextual evidence the FEC and intervenors highlight is the ads’ “specific and repeated cross-reference” to a website. Reply Brief for Appellant FEC 15. In the middle of the website’s homepage, in large type, were the addresses, phone numbers, fax numbers, and email addresses of Senators Feingold and Kohl. Wisconsinites who viewed “Wedding,” “Loan,” or “Waiting” and wished to contact their Senators—as the ads requested—would be able to obtain the pertinent contact information immediately upon visiting the website. This is fully consistent with viewing WRTL’s ads as genuine issue ads. The website also stated both Wisconsin Senators’ positions on judicial filibusters, and allowed visitors to sign up for “e-alerts,” some of which contained exhortations to vote against Senator Feingold. These details lend the electioneering interpretation of the ads more credence, but again, WRTL’s participation in express advocacy in other aspects of its work is not a justification for censoring its issue-related speech. Any express advocacy on the website, already one step removed from the text of the ads themselves, certainly does not render an interpretation of the ads as genuine issue ads unreasonable. Given the standard we have adopted for determining whether an ad is the “functional equivalent” of express advocacy, contextual factors of the sort invoked by appellants should seldom play a significant role in the inquiry. Courts need not ignore basic background information that may be necessary to put an ad in context—such as whether an ad “describes a legislative issue that is either currently the subject of legislative scrutiny or likely to be the subject of such scrutiny in the near future,” 466 F. Supp. 2d, at 207—but the need to consider such background should not become an excuse for discovery or a broader inquiry of the sort we have just noted raises First Amendment concerns. At best, appellants have shown what we have acknowledged at least since Buckley: that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application.” 424 U. S., at 42. Under the test set forth above, that is not enough to establish that the ads can only reasonably be viewed as advocating or opposing a candidate in a federal election. “Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.” Thornhill v. Alabama, 310 U. S. 88, 102 (1940). Discussion of issues cannot be suppressed simply because the issues may also be pertinent in an election. Where the First Amendment is implicated, the tie goes to the speaker, not the censor.[Footnote 7] We confronted a similar issue in Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002), in which the Government argued that virtual images of child pornography were difficult to distinguish from real images. The Government’s solution was “to prohibit both kinds of images.” Id., at 254–255. We rejected the argument that “protected speech may be banned as a means to ban unprotected speech,” concluding that it “turns the First Amendment upside down.” Id., at 255. As we explained: “The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse.” Ibid. Because WRTL’s ads may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate, we hold they are not the functional equivalent of express advocacy, and therefore fall outside the scope of McConnell’s holding.[Footnote 8] IV BCRA §203 can be constitutionally applied to WRTL’s ads only if it is narrowly tailored to further a compelling interest. McConnell, 540 U. S., at 205; Bellotti, 435 U. S., at 786; Buckley, supra, at 44–45. This Court has never recognized a compelling interest in regulating ads, like WRTL’s, that are neither express advocacy nor its functional equivalent. The District Court below considered interests that might justify regulating WRTL’s ads here, and found none sufficiently compelling. 466 F. Supp. 2d, at 208–210. We reach the same conclusion.[Footnote 9] At the outset, we reject the contention that issue advocacy may be regulated because express election advocacy may be, and “the speech involved in so-called issue advocacy is [not] any more core political speech than are words of express advocacy.” McConnell, supra, at 205. This greater-includes-the-lesser approach is not how strict scrutiny works. A corporate ad expressing support for the local football team could not be regulated on the ground that such speech is less “core” than corporate speech about an election, which we have held may be restricted. A court applying strict scrutiny must ensure that a compelling interest supports each application of a statute restricting speech. That a compelling interest justifies restrictions on express advocacy tells us little about whether a compelling interest justifies restrictions on issue advocacy; the McConnell Court itself made just that point. See 540 U. S., at 206, n. 88. Such a greater-includes-the-lesser argument would dictate that virtually all corporate speech can be suppressed, since few kinds of speech can lay claim to being as central to the First Amendment as campaign speech. That conclusion is clearly foreclosed by our precedent. See, e.g., Bellotti, supra, at 776–777. This Court has long recognized “the governmental interest in preventing corruption and the appearance of corruption” in election campaigns. Buckley, 424 U. S., at 45. This interest has been invoked as a reason for upholding contribution limits. As Buckley explained, “[t]o the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.” Id., at 26–27. We have suggested that this interest might also justify limits on electioneering expenditures because it may be that, in some circumstances, “large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions.” Id., at 45. McConnell arguably applied this interest—which this Court had only assumed could justify regulation of express advocacy—to ads that were the “functional equivalent” of express advocacy. See 540 U. S., at 204–206. But to justify regulation of WRTL’s ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. Enough is enough. Issue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quo corruption interest cannot justify regulating them. To equate WRTL’s ads with contributions is to ignore their value as political speech. Appellants argue that an expansive definition of “functional equivalent” is needed to ensure that issue advocacy does not circumvent the rule against express advocacy, which in turn helps protect against circumvention of the rule against contributions. Cf. McConnell, supra, at 205 (“[R]ecent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against circumvention of [valid] contribution limits” (internal quotation marks omitted; brackets in original)). But such a prophylaxis-upon-prophylaxis approach to regulating expression is not consistent with strict scrutiny. “[T]he desire for a bright-line rule . . . hardly constitutes the compelling state interest necessary to justify any infringement on First Amendment freedom.” MCFL, 479 U. S., at 263. See Free Speech Coalition, 535 U. S., at 255 (“The Government may not suppress lawful speech as the means to suppress unlawful speech”); Buckley, supra, at 44 (expenditure limitations “cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations”). A second possible compelling interest recognized by this Court lies in addressing a “different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, 494 U. S., at 660. Austin invoked this interest to uphold a state statute making it a felony for corporations to use treasury funds for independent expenditures on express election advocacy. Id., at 654–655. McConnell also relied on this interest in upholding regulation not just of express advocacy, but also its “functional equivalent.” 540 U. S., at 205–206. These cases did not suggest, however, that the interest in combating “a different type of corruption” extended beyond campaign speech. Quite the contrary. Two of the Justices who joined the 6-to-3 majority in Austin relied, in upholding the constitutionality of the ban on campaign speech, on the fact that corporations retained freedom to speak on issues as distinct from election campaigns. See 494 U. S., at 675–678 (Brennan, J., concurring) (describing fact that campaign speech ban “does not regulate corporate expenditures in referenda or other corporate expression” as “reflect[ing] the requirements of our decisions”); id., at 678 (Stevens, J., concurring) (“[T]here is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public office on the other”). The McConnell Court similarly was willing to “assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads.” 540 U. S., at 206, n. 88. And our decision in WRTL I reinforced the validity of that assumption by holding that BCRA §203 is susceptible to as-applied challenges. 546 U. S., at 411–412. Accepting the notion that a ban on campaign speech could also embrace issue advocacy would call into question our holding in Bellotti that the corporate identity of a speaker does not strip corporations of all free speech rights. 435 U. S., at 778. It would be a constitutional “bait and switch” to conclude that corporate campaign speech may be banned in part because corporate issue advocacy is not, and then assert that corporate issue advocacy may be banned as well, pursuant to the same asserted compelling interest, through a broad conception of what constitutes the functional equivalent of campaign speech, or by relying on the inability to distinguish campaign speech from issue advocacy. The FEC and intervenors do not argue that the Austin interest justifies regulating genuine issue ads. Instead, they focus on establishing that WRTL’s ads are the functional equivalent of express advocacy—a contention we have already rejected. We hold that the interest recognized in Austin as justifying regulation of corporate campaign speech and extended in McConnell to the functional equivalent of such speech has no application to issue advocacy of the sort engaged in by WRTL.[Footnote 10] Because WRTL’s ads are not express advocacy or its functional equivalent, and because appellants identify no interest sufficiently compelling to justify burdening WRTL’s speech, we hold that BCRA §203 is unconstitutional as applied to WRTL’s “Wedding,” “Loan,” and “Waiting” ads. * * * These cases are about political speech. The importance of the cases to speech and debate on public policy issues is reflected in the number of diverse organizations that have joined in supporting WRTL before this Court: the American Civil Liberties Union, the National Rifle Association, the American Federation of Labor and Congress of Industrial Organizations, the Chamber of Commerce of the United States of America, Focus on the Family, the Coalition of Public Charities, the Cato Institute, and many others. Yet, as is often the case in this Court’s First Amendment opinions, we have gotten this far in the analysis without quoting the Amendment itself: “Congress shall make no law . . . abridging the freedom of speech.” The Framers’ actual words put these cases in proper perspective. Our jurisprudence over the past 216 years has rejected an absolutist interpretation of those words, but when it comes to drawing difficult lines in the area of pure political speech—between what is protected and what the Government may ban—it is worth recalling the language we are applying. McConnell held that express advocacy of a candidate or his opponent by a corporation shortly before an election may be prohibited, along with the functional equivalent of such express advocacy. We have no occasion to revisit that determination today. But when it comes to defining what speech qualifies as the functional equivalent of express advocacy subject to such a ban—the issue we do have to decide—we give the benefit of the doubt to speech, not censorship. The First Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech” demands at least that. The judgment of the United States District Court for the District of Columbia is affirmed. It is so ordered. Footnote 1 Subparagraph (A) provides: “(i) The term ‘electioneering communication’ means any broadcast, cable, or satellite communication which— “(I) refers to a clearly identified candidate for Federal office; “(II) is made within— “(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or “(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and “(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.” 2 U. S. C. §434(f)(3)(A) (2000 ed., Supp. IV). Subsection (B) defines exceptions to “electioneering communication” not relevant to this litigation. Subsection (C) defines the term “targeted to the relevant electorate.” Footnote 2 The radio script for “Loan” differs from “Wedding” only in its lead-in. “Loan” begins: “ ‘LOAN OFFICER: Welcome Mr. and Mrs. Shulman. We’ve reviewed your loan application, along with your credit report, the appraisal on the house, the inspections, and well … “ ‘COUPLE: Yes, yes … we’re listening. “ ‘OFFICER: Well, it all reminds me of a time I went fishing with my father. We were on the Wolf River Waupaca … “ ‘VOICE-OVER: Sometimes it’s just not fair to delay an important decision. “ ‘But in Washington it’s happening… .’ ” 466 F. Supp. 2d, at 198, n. 4. The remainder of the script is identical to “Wedding.” Footnote 3 In “Waiting,” the images on the television ad depict a “ ‘middle-aged man being as productive as possible while his professional life is in limbo.’ ” Id., at 198, n. 5. The man reads the morning paper, polishes his shoes, scans through his Rolodex, and does other similar activities. The television script for this ad reads: “ ‘VOICE-OVER: There are a lot of judicial nominees out there who can’t go to work. Their careers are put on hold because a group of Senators is filibustering—blocking qualified nominees from a simple “yes” or “no” vote. “ ‘It’s politics at work and it’s causing gridlock… .’ ” Ibid. The remainder of the script is virtually identical to “Wedding.” Footnote 4 This is particularly true given that the methodology, data, and conclusions of the two studies were the subject of serious dispute among the District Court judges. Compare McConnell v. FEC, 251 F. Supp. 2d 176, 307–312 (DC 2003) (opinion of Henderson, J.) (stating that the studies were flawed and of limited evidentiary value), with id., at 585, 583–588 (opinion of Kollar-Kotelly, J.) (finding the studies generally credible, but stating that “I am troubled by the fact that coders in both studies were asked questions regarding their own perceptions of the advertisements’ purposes, and that [some of] these perceptions were later recoded” by study supervisors). Nothing in this Court’s opinion in McConnell suggests it was resolving the sharp disagreements about the evidentiary record in this respect. Footnote 5 Consider what happened in these cases. The District Court permitted extensive discovery on the assumption that WRTL’s intent was relevant. As a result, the defendants deposed WRTL’s executive director, its legislative director, its political action committee director, its lead communications consultant, and one of its fundraisers. WRTL also had to turn over many documents related to its operations, plans, and finances. Such litigation constitutes a severe burden on political speech. Footnote 6 For these reasons, we cannot agree with Justice Souter’s assertion that “anyone who heard the Feingold ads … would know that WRTL’s message was to vote against Feingold.” Post, at 23. The dissent supports this assertion by likening WRTL’s ads to the “Jane Doe” example identified in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003). But that ad “condemned Jane Doe’s record on a particular issue.” Post, at 23 (internal quotation marks omitted). WRTL’s ads do not do so; they instead take a position on the filibuster issue and exhort constituents to contact Senators Feingold and Kohl to advance that position. Indeed, one would not even know from the ads whether Senator Feingold supported or opposed filibusters. Justice Souter is confident Wisconsinites independently knew Senator Feingold’s position on filibusters, but we think that confidence misplaced. A prominent study found, for example, that during the 2000 election cycle, 85 percent of respondents to a survey were not even able to name at least one candidate for the House of Representatives in their own district. See Inter-university Consortium for Political and Social Research, American National Election Study, 2000: Pre- and Post-Election Survey 243 (N. Burns et al. eds. 2002) online at http://www.icpsr.umich.edu/ cocoon/ICPSR/STUDY/03131.xml (as visited June 22, 2007, and available in Clerk of Court’s case file). Footnote 7 Justice Scalia thinks our test impermissibly vague. See post, at 11–12 (opinion concurring in part and concurring in judgment). As should be evident, we agree with Justice Scalia on the imperative for clarity in this area; that is why our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. It is why we emphasize that (1) there can be no free-ranging intent-and-effect test; (2) there generally should be no discovery or inquiry into the sort of “contextual” factors highlighted by the FEC and intervenors; (3) discussion of issues cannot be banned merely because the issues might be relevant to an election; and (4) in a debatable case, the tie is resolved in favor of protecting speech. And keep in mind this test is only triggered if the speech meets the brightline requirements of BCRA §203 in the first place. Justice Scalia’s criticism of our test is all the more confusing because he accepts WRTL’s proposed three-prong test as “clear.” Post, at 17. We do not think our test any vaguer than WRTL’s, and it is more protective of political speech. Justice Scalia also asserts that our test conflicts with Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam). Post, at 13–16. The Buckley Court confronted a statute restricting “any expenditure … relative to a clearly identified candidate.” 424 U. S., at 42 (internal quotation marks omitted). To avoid vagueness concerns, this Court first narrowed the statute to cover only expenditures expressly “advocating the election or defeat of a candidate”—using the so-called “magic words” of express advocacy. Ibid. (internal quotation marks omitted). The Court then proceeded to strike down the newly narrowed statute under strict scrutiny on the ground that its reach was not broad enough. Id., at 44. From this, Justice Scalia concludes that “[i]f a permissible test short of the magic-words test existed, Buckley would surely have adopted it.” Post, at 14. We are not so sure. The question in Buckley was how a particular statutory provision could be construed to avoid vagueness concerns, not what the constitutional standard for clarity was in the abstract, divorced from specific statutory language. Buckley’s intermediate step of statutory construction on the way to its constitutional holding does not dictate a constitutional test. The Buckley Court’s “express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law.” McConnell, 540 U. S., at 190. And despite Justice Scalia’s claim to the contrary, our citation of Buckley along with other decisions in rejecting an intent-and-effect test does not force us to adopt (or reject) Buckley’s statutory construction as a constitutional test. Footnote 8 Nothing in McConnell’s statement that the “vast majority” of issue ads broadcast in the periods preceding federal elections had an “electioneering purpose” forecloses this conclusion. 540 U. S., at 206. Courts do not resolve unspecified as-applied challenges in the course of resolving a facial attack, so McConnell could not have settled the issue we address today. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 803, n. 22 (1984) (“The fact that [a law] is capable of valid applications does not necessarily mean that it is valid as applied to these litigants”). Indeed, WRTL I confirmed as much. 546 U. S., at 411–412. By the same token, in deciding this as-applied challenge, we have no occasion to revisit McConnell’s conclusion that the statute is not facially overbroad. The “vast majority” language, moreover, is beside the point. The McConnell Court did not find that a “vast majority” of the issue ads considered were the functional equivalent of direct advocacy. Rather, it found that such ads had an “electioneering purpose.” For the reasons we have explained, “purpose” is not the appropriate test for distinguishing between genuine issue ads and the functional equivalent of express campaign advocacy. See supra, at 14–15. In addition, the “vast majority” statement was not necessary to the Court’s facial holding in McConnell. The standard required for a statute to survive an overbreadth challenge is not that the “vast majority” of a statute’s applications be legitimate. “[B]road language . . . unnecessary to the Court’s decision … cannot be considered binding authority.” Kastigar v. United States, 406 U. S. 441, 454–455 (1972). Footnote 9 The dissent stresses a number of points that, while not central to our decision, nevertheless merit a response. First, the dissent overstates its case when it asserts that the “PAC alternative” gives corporations a constitutionally sufficient outlet to speak. See post, at 30. PACs impose well-documented and onerous burdens, particularly on small nonprofits. See MCFL, 479 U. S. 238, 253–255 (1986) (plurality opinion). McConnell did conclude that segregated funds “provid[e] corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy” and its functional equivalent, 540 U. S., at 203, but that holding did not extend beyond functional equivalents—and if it did, the PAC option would justify regulation of all corporate speech, a proposition we have rejected, see Bellotti, 435 U. S., at 777–778. Second, the response that a speaker should just take out a newspaper ad, or use a website, rather than complain that it cannot speak through a broadcast communication, see post, at 18–19, 33, is too glib. Even assuming for the sake of argument that the possibility of using a different medium of communication has relevance in determining the permissibility of a limitation on speech, newspaper ads and websites are not reasonable alternatives to broadcast speech in terms of impact and effectiveness. See McConnell v. FEC, 251 F. Supp. 2d, at 569–573, 646 (Kollar-Kotelly, J.). Third, we disagree with the dissent’s view that corporations can still speak by changing what they say to avoid mentioning candidates, post, at 30–31. That argument is akin to telling Cohen that he cannot wear his jacket because he is free to wear one that says “I disagree with the draft,” cf. Cohen v. California, 403 U. S. 15 (1971), or telling 44 Liquormart that it can advertise so long as it avoids mentioning prices, cf. 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484 (1996). Such notions run afoul of “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995). Footnote 10 The interest recognized in Austin stems from a concern that “ ‘[t]he resources in the treasury of a business corporation . . . are not an indication of popular support for the corporation’s political ideas.’ ” Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 659 (1990) (alteration in original). Some of WRTL’s amici contend that this interest is not implicated here because of WRTL’s status as a nonprofit advocacy organization. They assert that “[s]peech by nonprofit advocacy groups on behalf of their members does not ‘corrupt’ candidates or ‘distort’ the political marketplace,” and that “[n]onprofit advocacy groups funded by individuals are readily distinguished from for-profit corporations funded by general treasuries.” Brief for Family Research Council et al. as Amici Curiae 3, 4. Cf. MCFL, 479 U. S., at 264. We do not pass on this argument in this as-applied challenge because WRTL’s funds for its ads were not derived solely from individual contributions. See Brief for Appellant FEC 11.
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551.US.112
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The trial judge presiding over petitioner’s criminal trial excluded the testimony of defense-witness Pamela Maples. After his conviction, petitioner argued on appeal, inter alia, that the exclusion of Maples’ testimony violated Chambers v. Mississippi, 410 U. S. 284, which held that a combination of erroneous evidentiary rulings rose to the level of a due-process violation. The California Court of Appeal did not explicitly address that argument in affirming, but stated, without specifying which harmless-error standard it was applying, that “no possible prejudice” could have resulted in light of the cumulative nature of Maples’ testimony. The State Supreme Court denied discretionary review. Petitioner then filed a federal habeas petition raising the due-process and other claims. The Magistrate Judge found the state appellate court’s failure to recognize Chambers error an unreasonable application of clearly established law as set forth by this Court, and disagreed with the finding of “no possible prejudice,” but concluded there was an insufficient showing that the improper exclusion of Maples’ testimony had a “substantial and injurious effect” on the jury’s verdict under Brecht v. Abrahamson, 507 U. S. 619, 631. Agreeing, the District Court denied relief, and the Ninth Circuit affirmed. Held: In 28 U. S. C. §2254 proceedings, a federal court must assess the prejudicial impact of constitutional error in a state-court criminal trial under Brecht’s “substantial and injurious effect” standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U. S. 18, 24. Pp. 3–8. (a) That Brecht applies in §2254 cases even if the state appellate court has not found, as did the state appellate court in Brecht, that the error was harmless under Chapman, is indicated by this Court’s Brecht opinion, which did not turn on whether the state court itself conducted Chapman review, but instead cited concerns about finality, comity, and federalism as the primary reasons for adopting a less onerous standard on collateral review. 507 U. S., at 637. Since each of these concerns applies with equal force whether or not the state court reaches the Chapman question, it would be illogical to make the standard of review turn upon that contingency. Brecht, supra, at 636, distinguished. Petitioner presents a false analogy in arguing that, if Brecht applies whether or not the state appellate court conducted Chapman review, then Brecht would apply even if a State eliminated appellate review altogether. The Court also rejects petitioner’s contention that, even if Brecht adopted a categorical rule, post-Brecht developments—the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as interpreted in Mitchell v. Esparza, 540 U. S. 12—require a different review standard. That result is not suggested by Esparza, which had no reason to decide the point, nor by AEDPA, which sets forth a precondition, not an entitlement, to the grant of habeas relief. Pp. 3–7. (b) Petitioner’s argument that the judgment below must still be reversed because excluding Maples’ testimony substantially and injuriously affected the jury’s verdict is rejected as not fairly encompassed by the question presented. Pp. 7–8. Affirmed. Scalia, J., delivered the opinion for a unanimous Court with respect to all but footnote 1 and Part II–B. Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined that opinion in full; Stevens, Souter, and Ginsburg, JJ., joined it as to all but Part II–B; and Breyer, J., joined as to all but footnote 1 and Part II–B. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined, and in which Breyer, J., joined in part. Breyer, J., filed an opinion concurring in part and dissenting in part.
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We decide whether a federal habeas court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht v. Abrahamson, 507 U. S. 619 (1993), when the state appellate court failed to recognize the error and did not review it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U. S. 18 (1967). I After two mistrials on account of hung juries, a third jury convicted petitioner of the 1992 murders of James and Cynthia Bell. At trial, petitioner sought to attribute the murders to one or more other persons. To that end, he offered testimony of several witnesses who linked one Anthony Hurtz to the killings. But the trial court excluded the testimony of one additional witness, Pamela Maples, who was prepared to testify that she had heard Hurtz discussing homicides bearing some resemblance to the murder of the Bells. In the trial court’s view, the defense had provided insufficient evidence to link the incidents described by Hurtz to the murders for which petitioner was charged. Following his conviction, petitioner appealed to the California Court of Appeal, arguing (among other things) that the trial court’s exclusion of Maples’ testimony deprived him of a fair opportunity to defend himself, in violation of Chambers v. Mississippi, 410 U. S. 284 (1973) (holding that a combination of erroneous evidentiary rulings rose to the level of a due process violation). Without explicitly addressing petitioner’s Chambers argument, the state appellate court held that the trial court had not abused its discretion in excluding Maples’ testimony under California’s evidentiary rules, adding that “no possible prejudice” could have resulted in light of the “merely cumulative” nature of the testimony. People v. Fry, No. A072396 (Ct. App. Cal., 1st App. Dist., Mar. 30, 2000), App. 97, n. 17. The court did not specify which harmless-error standard it was applying in concluding that petitioner suffered “no possible prejudice.” The Supreme Court of California denied discretionary review, and petitioner did not then seek a writ of certiorari from this Court. Petitioner next filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California, raising the aforementioned due-process claim (among others). The case was initially assigned to a Magistrate Judge, who ultimately recommended denying relief. He found the state appellate court’s failure to recognize error under Chambers to be “an unreasonable application of clearly established law as set forth by the Supreme Court,” App. 180, and disagreed with the state appellate court’s finding of “no possible prejudice.” But he nevertheless concluded that “there ha[d] been an insufficient showing that the improper exclusion of the testimony of Ms. Maples had a substantial and injurious effect on the jury’s verdict” under the standard set forth in Brecht. App. 181–182. The District Court adopted the Magistrate Judge’s findings and recommendations in full, and a divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. We granted certiorari. 549 U. S. ___ (2006). II A In Chapman, supra, a case that reached this Court on direct review of a state-court criminal judgment, we held that a federal constitutional error can be considered harmless only if a court is “able to declare a belief that it was harmless beyond a reasonable doubt.” Id., at 24. In Brecht, supra, we considered whether the Chapman standard of review applies on collateral review of a state-court criminal judgment under 28 U. S. C. §2254. Citing concerns about finality, comity, and federalism, we rejected the Chapman standard in favor of the more forgiving standard of review applied to nonconstitutional errors on direct appeal from federal convictions. See Kotteakos v. United States, 328 U. S. 750 (1946). Under that standard, an error is harmless unless it “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, supra, at 631 (quoting Kotteakos, supra, at 776). The question in this case is whether a federal court must assess the prejudicial impact of the unconstitutional exclusion of evidence during a state-court criminal trial under Brecht even if the state appellate court has not found, as the state appellate court in Brecht had found, that the error was harmless beyond a reasonable doubt under Chapman.[Footnote 1] We begin with the Court’s opinion in Brecht. The primary reasons it gave for adopting a less onerous standard on collateral review of state-court criminal judgments did not turn on whether the state court itself conducted Chapman review. The opinion explained that application of Chapman would “undermin[e] the States’ interest in finality,” 507 U. S., at 637; would “infring[e] upon [the States’] sovereignty over criminal matters,” ibid.; would undercut the historic limitation of habeas relief to those “ ‘grievously wronged,’ ” ibid.; and would “impos[e] significant ‘societal costs,’ ” ibid. (quoting United States v. Mechanik, 475 U. S. 66, 72 (1986)). Since each of these concerns applies with equal force whether or not the state court reaches the Chapman question, it would be illogical to make the standard of review turn upon that contingency. The opinion in Brecht clearly assumed that the Kotteakos standard would apply in virtually all §2254 cases. It suggested an exception only for the “unusual case” in which “a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct … infect[s] the integrity of the proceeding.” 507 U. S., at 638, n. 9. This, of course, has nothing to do with whether the state court conducted harmless-error review. The concurring and dissenting opinions shared the assumption that Kotteakos would almost always be the standard on collateral review. The former stated in categorical terms that the “Kotteakos standard” “will now apply on collateral review” of state convictions, 507 U. S., at 643 (Stevens, J., concurring). Justice White’s dissent complained that under the Court’s opinion Kotteakos would apply even where (as in this case) the state court found that “no violation had occurred,” 507 U. S., at 644; and Justice O’Connor’s dissent stated that Chapman would “no longer appl[y] to any trial error asserted on habeas,” 507 U. S., at 651. Later cases also assumed that Brecht’s applicability does not turn on whether the state appellate court recognized the constitutional error and reached the Chapman question. See Penry v. Johnson, 532 U. S. 782, 795 (2001); Calderon v. Coleman, 525 U. S. 141, 145 (1998) (per curiam). Petitioner’s contrary position misreads (or at least exaggerates the significance of) a lone passage from our Brecht opinion. In that passage, the Court explained: “State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process under Chapman, and state courts often occupy a superior vantage point from which to evaluate the effect of trial error. For these reasons, it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.” 507 U. S., at 636 (citation omitted). But the quoted passage does little to advance petitioner’s position. To say (a) that since state courts are required to evaluate constitutional error under Chapman it makes no sense to establish Chapman as the standard for federal habeas review is not at all to say (b) that whenever a state court fails in its responsibility to apply Chapman the federal habeas standard must change. It would be foolish to equate the two, in view of the other weighty reasons given in Brecht for applying a less onerous standard on collateral review—reasons having nothing to do with whether the state court actually applied Chapman. Petitioner argues that, if Brecht applies whether or not the state appellate court conducted Chapman review, then Brecht would apply even if a State eliminated appellate review altogether. That is not necessarily so. The federal habeas review rule applied to the class of case in which state appellate review is available does not have to be the same rule applied to the class of case where it is not. We have no occasion to resolve that hypothetical (and highly unrealistic) question now. In the case before us petitioner did obtain appellate review of his constitutional claim; the state court simply found the underlying claim weak and therefore did not measure its prejudicial impact under Chapman. The attempted analogy—between (1) eliminating appellate review altogether and (2) providing appellate review but rejecting a constitutional claim without assessing its prejudicial impact under Chapman—is a false one. Petitioner contends that, even if Brecht adopted a categorical rule, post-Brecht developments require a different standard of review. Three years after we decided Brecht, Congress passed, and the President signed, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which a habeas petition may not be granted unless the state court’s adjudication “resulted in a decision that 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). In Mitchell v. Esparza, 540 U. S. 12 (2003) (per curiam), we held that, when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under §2254 unless the harmlessness determination itself was unreasonable. Petitioner contends that §2254(d)(1), as interpreted in Esparza, eliminates the requirement that a petitioner also satisfy Brecht’s standard. We think not. That conclusion is not suggested by Esparza, which had no reason to decide the point. Nor is it suggested by the text of AEDPA, which sets forth a precondition to the grant of habeas relief (“a writ of habeas corpus … shall not be granted” unless the conditions of §2254(d) are met), not an entitlement to it. Given our frequent recognition that AEDPA limited rather than expanded the availability of habeas relief, see, e.g., Williams v. Taylor, 529 U. S. 362, 412 (2000), it is implausible that, without saying so, AEDPA replaced the Brecht standard of “ ‘actual prejudice,’ ” 507 U. S., at 637 (quoting United States v. Lane, 474 U. S. 438, 449 (1986)), with the more liberal AEDPA/Chapman standard which requires only that the state court’s harmless-beyond-a-reasonable-doubt determination be unreasonable. That said, it certainly makes no sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former. Accordingly, the Ninth Circuit was correct to apply the Brecht standard of review in assessing the prejudicial impact of federal constitutional error in a state-court criminal trial.[Footnote 2] B Petitioner argues that, even if Brecht provides the standard of review, we must still reverse the judgment below because the exclusion of Maples’ testimony substantially and injuriously affected the jury’s verdict in this case. That argument, however, is not fairly encompassed within the question presented. We granted certiorari to decide a question that has divided the Courts of Appeals—whether Brecht or Chapman provides the appropriate standard of review when constitutional error in a state-court trial is first recognized by a federal court. Compare, e.g., Bains v. Cambra, 204 F. 3d 964, 976–977 (CA9 2000), with Orndorff v. Lockhart, 998 F. 2d 1426, 1429–1430 (CA8 1993). It is true that the second sentence of the question presented asks: “Does it matter which harmless error standard is employed?” Pet. for Cert. I. But to ask whether Brecht makes any real difference is not to ask whether the Ninth Circuit misapplied Brecht in this particular case. Petitioner seems to have understood this. Only in a brief footnote of his petition did he hint that the Ninth Circuit erred in its application of the Brecht standard. Pet. for Cert. 23, n. 19.[Footnote 3] Indeed, if application of the Brecht standard to the facts of this case were encompassed within the question presented, so too would be the question of whether there was constitutional error in the first place. After all, it would not “matter which harmless error standard is employed” if there were no underlying constitutional error. Unlike the dissenting Justices, some of whom would reverse the decision below on the ground that the error was harmful under Brecht, and one of whom would vacate the decision below on the ground that it is unclear whether there was constitutional error in the first instance, we read the question presented to avoid these tangential and factbound questions, and limit our review to the question of whether Chapman or Brecht provides the governing standard. * * * We hold that in §2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht, 507 U. S. 619, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman, 386 U. S. 18. Since the Ninth Circuit correctly applied the Brecht standard rather than the Chapman standard, we affirm the judgment below. It is so ordered. Footnote 1 As this case comes to the Court, we assume (without deciding) that the state appellate court’s decision affirming the exclusion of Maples’ testimony was an unreasonable application of Chambers v. Mississippi, 410 U. S. 284, 302 (1973). We also assume that the state appellate court did not determine the harmlessness of the error under the Chapman standard, notwithstanding its ambiguous conclusion that the exclusion of Maples’ testimony resulted in “no possible prejudice.” Footnote 2 We do not agree with petitioner’s amicus that Brecht’s concerns regarding the finality of state-court criminal judgments and the difficulty of retrying a defendant years after the crime “have been largely alleviated by [AEDPA],” which “sets strict time limitations on habeas petitions and limits second or successive petitions as well.” Brief for Innocence Network 7. Even cases governed by AEDPA can span a decade, as the nearly 12-year gap between petitioner’s conviction and the issuance of this decision illustrates. Footnote 3 The question presented included one additional issue: “[I]f the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?” Pet. for Cert. I. We have previously held that, when a court is “in virtual equipoise as to the harmlessness of the error” under the Brecht standard, the court should “treat the error … as if it affected the verdict … .” O’Neal v. McAninch, 513 U. S. 432, 435 (1995). The majority opinion below did not refer to O’Neal, presumably because the majority harbored no grave doubt as to the harmlessness of the error. Neither did the dissenting judge refer to O’Neal, presumably because she did not think the majority harbored grave doubt as to the harmlessness of the error. Moreover, the State has conceded throughout this §2254 proceeding that it bears the burden of persuasion. Thus, there is no basis on which to conclude that the court below ignored O’Neal.
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550.US.45
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Under authority of the Communications Act of 1934, the Federal Communications Commission (FCC) regulates interstate telephone communications using a traditional regulatory system similar to what other commissions have applied when regulating other common carriers. Indeed, Congress largely copied language from the earlier Interstate Commerce Act, which authorized federal railroad regulation, when it wrote Communications Act §§201(b) and 207, the provisions at issue. Both Acts authorize their respective commissions to declare any carrier “charge,” “regulation,” or “practice” in connection with the carrier’s services to be “unjust or unreasonable”; declare an “unreasonable,” e.g., “charge” to be “unlawful”; authorize an injured person to recover “damages” for an “unlawful” charge or practice; and state that, to do so, the person may bring suit in a “court” “of the United States.” Interstate Commerce Act §§1, 8, 9; Communications Act §§201(b), 206, 207. The underlying regulatory problem here arises at the intersection of traditional regulation and newer, more competitively oriented approaches. Legislation in 1990 required payphone operators to allow payphone users to obtain “free” access to the long-distance carrier of their choice, i.e., access without depositing coins. But recognizing the “free” call would impose a cost upon the payphone operator, Congress required the FCC to promulgate regulations to provide compensation to such operators. Using traditional ratemaking methods, the FCC ordered carriers to reimburse the operators in a specified amount unless a carrier and an operator agreed to a different amount. The FCC subsequently determined that a carrier’s refusal to pay such compensation was an “unreasonable practice” and thus unlawful under §201(b). Respondent payphone operator brought a federal lawsuit, claiming that petitioner long-distance carrier (hereinafter Global Crossing) had violated §201(b) by failing to pay compensation and that §207 authorized respondent to sue in federal court. The District Court agreed that Global Crossing’s refusal to pay violated §201(b), thereby permitting respondent to sue under §207. The Ninth Circuit affirmed. Held: The FCC’s application of §201(b) to the carrier’s refusal to pay compensation is lawful; and, given the linkage with §207, §207 authorizes this federal-court lawsuit. Pp. 7–19. (a) The language of §§201(b), 206, and 207 and those sections’ history, including that of their predecessors, Interstate Commerce Act §§8 and 9, make clear that §207’s purpose is to allow persons injured by §201(b) violations to bring federal-court damages actions. The difficult question is whether the FCC regulation at issue lawfully implements §201(b)’s “unreasonable practice” prohibition. Pp. 7–9. (b) The FCC’s §201(b) “unreasonable practice” determination is reasonable, and thus lawful. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844. It easily fits within the language of the statutory phrase. Moreover, the underlying regulated activity at issue resembles activity long regulated by both transportation and communications agencies. Traditionally, the FCC, exercising its rate-setting authority, has divided revenues from a call among providers of segments of the call. Transportation agencies have similarly divided revenues from a larger transportation service among providers of segments of the service. The payphone operator and long-distance carrier resemble those joint providers of a communication or transportation service. Differences between the present “unreasonable practice” classification and more traditional regulatory subject matter do not require a different outcome. When Congress revised the telecommunications laws in 1996 to enhance the role of competition, creating a system that relies in part upon competition and in part upon the role of tariffs in regulatory supervision, it left §201(b) in place. In light of the absence of any congressional prohibition, and the similarities with traditional regulatory action, the Court finds nothing unreasonable about the FCC’s §201(b) determination. United States v. Mead Corp., 533 U. S. 218, 229. Pp. 9–12. (c) Additional arguments made by Global Crossing, its supporting amici and the dissents—that §207 does not authorize actions for violations of regulations promulgated to carry out statutory objectives; that no §207 action lies for violations of substantive regulations promulgated by the FCC; that §§201(a) and (b) concern only practices that harm carrier customers, not carrier suppliers; that the FCC’s “unreasonable practice” determination is unlawful because it is inadequately reasoned; and that §276 prohibits the FCC’s §201(b) classification—are ultimately unpersuasive. Pp. 12–19. 423 F. 3d 1056, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Alito, JJ., joined. Scalia, J., and Thomas, J., filed dissenting opinions.
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The Federal Communications Commission (Commission or FCC) has established rules that require long-distance (and certain other) communications carriers to compensate a payphone operator when a caller uses a payphone to obtain free access to the carrier’s lines (by dialing, e.g., a 1–800 number or other access code). The Commission has added that a carrier’s refusal to pay the compensation is a “practice … that is unjust or unreasonable” within the terms of the Communications Act of 1934, §201(b), 48 Stat. 1070, 47 U. S. C. §201(b). Communications Act language links §201(b) to §207, which authorizes any person “damaged” by a violation of §201(b) to bring a lawsuit to recover damages in federal court. And we must here decide whether this linked section, §207, authorizes a payphone operator to bring a federal-court lawsuit against a recalcitrant carrier that refuses to pay the compensation that the Commission’s order says it owes. In our view, the FCC’s application of §201(b) to the carrier’s refusal to pay compensation is a reasonable interpretation of the statute; hence it is lawful. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844, and n. 11 (1984). And, given the linkage with §207, we also conclude that §207 authorizes this federal-court lawsuit. I A Because regulatory history helps to illuminate the proper interpretation and application of §§201(b) and 207, we begin with that history. When Congress enacted the Communications Act of 1934, it granted the FCC broad authority to regulate interstate telephone communications. See Louisiana Pub. Serv. Comm’n v. FCC, 476 U. S. 355, 360 (1986). The Commission, during the first several decades of its history, used this authority to develop a traditional regulatory system much like the systems other commissions had applied when regulating railroads, public utilities, and other common carriers. A utility or carrier would file with a commission a tariff containing rates, and perhaps other practices, classifications, or regulations in connection with its provision of communications services. The commission would examine the rates, etc., and, after appropriate proceedings, approve them, set them aside, or, sometimes, set forth a substitute rate schedule or list of approved charges, classifications, or practices that the carrier or utility must follow. In doing so, the commission might determine the utility’s or carrier’s overall costs (including a reasonable profit), allocate costs to particular services, examine whether, and how, individual rates would generate revenue that would help cover those costs, and, if necessary, provide for a division of revenues among several carriers that together provided a single service. See 47 U. S. C. §§201(b), 203, 205(a); Missouri ex rel. Southwestern Bell Telephone Co. v. Public Serv. Comm’n of Mo., 262 U. S. 276, 291–295 (1923) (Brandeis, J., concurring in judgment) (telecommunications); Verizon Communications Inc. v. FCC, 535 U. S. 467, 478 (2002) (same); Chicago & North Western R. Co. v. Atchison, T. & S. F. R. Co., 387 U. S. 326, 331 (1967) (railroads); Permian Basin Area Rate Cases, 390 U. S. 747, 761–765, 806–808 (1968) (natural gas field production). In authorizing this traditional form of regulation, Congress copied into the 1934 Communications Act language from the earlier Interstate Commerce Act of 1887, 24 Stat. 379, which (as amended) authorized federal railroad regulation. See American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U. S. 214, 222 (1998). Indeed, Congress largely copied §§1, 8, and 9 of the Interstate Commerce Act when it wrote the language of Communications Act §§201(b) and 207, the sections at issue here. The relevant sections (in both statutes) authorize the commission to declare any carrier “charge,” “regulation,” or “practice” in connection with the carrier’s services to be “unjust or unreasonable”; they declare an “unreasonable,” e.g., “charge” to be “unlawful”; they authorize an injured person to recover “damages” for an “unlawful” charge or practice; and they state that, to do so, the person may bring suit in a “court” “of the United States.” Interstate Commerce Act §§1, 8, 9, 24 Stat. 379, 382; Communications Act §§201(b), 206, 207, 47 U. S. C. §§201(b), 206, 207. Historically speaking, the Interstate Commerce Act sections changed early, preregulatory common-law rate-supervision procedures. The common law originally permitted a freight shipper to ask a court to determine whether a railroad rate was unreasonably high and to award the shipper damages in the form of “reparations.” The “new” regulatory law, however, made clear that a commission, not a court, would determine a rate’s reasonableness. At the same time, that “new” law permitted a shipper injured by an unreasonable rate to bring a federal lawsuit to collect damages. Interstate Commerce Act §§1, 8–9; Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370, 383–386 (1932); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 436, 440–441 (1907); Keogh v. Chicago & Northwestern R. Co., 260 U. S. 156, 162 (1922); Louisville & Nashville R. Co. v. Ohio Valley Tie Co., 242 U. S. 288, 290–291 (1916); J. Ely, Railroads and American Law 71–72, 226–227 (2001); A. Hoogenboom & O. Hoogenboom, A History of the ICC 61 (1976). The similar language of Communications Act §§201(b) and 207 indicates a roughly similar sharing of agency authority with federal courts. Beginning in the 1970’s, the FCC came to believe that communications markets might efficiently support more than one firm and that competition might supplement (or provide a substitute for) traditional regulation. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 220–221 (1994). The Commission facilitated entry of new telecommunications carriers into long-distance markets. And in the 1990’s, Congress amended the 1934 Act while also enacting new telecommunications statutes, in order to encourage (and sometimes to mandate) new competition. See Telecommunications Act of 1996, 110 Stat. 56, 47 U. S. C. §609 et seq. Neither Congress nor the Commission, however, totally abandoned traditional regulatory requirements. And the new statutes and amendments left many traditional requirements and related statutory provisions, including §§201(b) and 207, in place. E.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 975 (2005). B The regulatory problem that underlies this lawsuit arises at the intersection of traditional regulation and newer, more competitively oriented approaches. Competing long-distance carriers seek the business of individual local callers, including those who wish to make a long-distance call from a local payphone. A payphone operator, however, controls what is sometimes a necessary channel for the caller to reach the long-distance carrier. And prior to 1990, a payphone operator, exploiting this control, might require a caller to use a long-distance carrier that the operator favored while blocking access to the caller’s preferred carrier. Such a practice substituted the operator’s choice of carrier for the caller’s, and it potentially placed disfavored carriers at a competitive disadvantage. In 1990, Congress enacted special legislation requiring payphone operators to allow a payphone user to obtain “free” access to the carrier of his or her choice, i.e., access from the payphone without depositing coins. Telephone Operator Consumer Services Improvement Act of 1990, 104 Stat. 986, codified at 47 U. S. C. §226. (For ease of exposition, we often use familiar terms such as “long distance” and “free” calls instead of more precise terms such as “interexchange” and “coinless” or “dial-around” calls.) At the same time, Congress recognized that the “free” call would impose a cost upon the payphone operator; and it consequently required the FCC to “prescribe regulations that … establish a per call compensation plan to ensure that all payphone service providers are fairly compensated for each and every completed intrastate and interstate call.” §276(b)(1)(A) of the Communications Act of 1934, as added by §151 of the Telecommunications Act of 1996, 110 Stat. 106, codified at 47 U. S. C. §276(b)(1)(A). The FCC then considered the compensation problem. Using traditional ratemaking methods, it found that the (fixed and incremental) costs of a “free” call from a payphone to, say, a long-distance carrier warranted reimbursement of (at the time relevant to this litigation) $0.24 per call. The FCC ordered carriers to reimburse the payphone operators in this amount unless a carrier and an operator agreed upon a different amount. 47 CFR §64.1300(d) (2005). At the same time, it left the carriers free to pass the cost along to their customers, the payphone callers. Thus, in a typical “free” call, the carrier will bill the caller and then must share the revenue the carrier receives—to the tune of $0.24 per call—with the payphone operator that has, together with the carrier, furnished a communications service to the caller. The FCC subsequently determined that a carrier’s refusal to pay the compensation ordered amounts to an “unreasonable practice” within the terms of §201(b). (We shall refer to these regulations as the Compensation Order and the 2003 Payphone Order, respectively. See Appendix A, infra, for full citations.) See generally P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law §8.6.3, pp. 710–713 (2d ed. 1999) (hereinafter Huber). That determination, it believed, would permit a payphone operator to bring a federal-court lawsuit under §207, to collect the compensation owed. 2003 Payphone Order, 18 FCC Rcd. 19975, 19990, ¶32. C In 2003, respondent, Metrophones Telecommunications, Inc., a payphone operator, brought this federal-court lawsuit against Global Crossing Telecommunications, Inc., a long-distance carrier. Metrophones sought compensation that it said Global Crossing owed it under the FCC’s Compensation Order, 14 FCC Rcd. 2545 (1999). Insofar as is relevant here, Metrophones claimed that Global Crossing’s refusal to pay amounted to a violation of §201(b), thereby permitting Metrophones to sue in federal court, under §207, for the compensation owed. The District Court agreed. 423 F. 3d 1056, 1061 (CA9 2005). The Ninth Circuit affirmed the District Court’s determination. Ibid. We granted certiorari to determine whether §207 authorizes the lawsuit. II A Section 207 says that “[a]ny person claiming to be damaged by any common carrier … may bring suit” against the carrier “in any district court of the United States” for “recovery of the damages for which such common carrier may be liable under the provisions of this chapter.” 47 U. S. C. §207 (emphasis added). This language makes clear that the lawsuit is proper if the FCC could properly hold that a carrier’s failure to pay compensation is an “unreasonable practice” deemed “unlawful” under §201(b). That is because the immediately preceding section, §206, says that a common carrier is “liable” for “damages sustained in consequence of” the carrier’s doing “any act, matter, or thing in this chapter prohibited or declared to be unlawful.” And §201(b) declares “unlawful” any common-carrier “charge, practice, classification, or regulation that is unjust or unreasonable.” (See Appendix B, infra, for full text; emphasis added throughout). The history of these sections—including that of their predecessors, §§8 and 9 of the Interstate Commerce Act—simply reinforces the language, making clear the purpose of §207 is to allow persons injured by §201(b) violations to bring federal-court damages actions. See, e.g., Arizona Grocery Co., 284 U. S., at 384–385 (Interstate Commerce Act §§8–9); Part I–A, supra. History also makes clear that the FCC has long implemented §201(b) through the issuance of rules and regulations. This is obviously so when the rules take the form of FCC approval or prescription for the future of rates that exclusively are “reasonable.” See 47 U. S. C. §205 (authorizing the FCC to prescribe reasonable rates and practices in order to preclude rates or practices that violate §201(b)); 5 U. S. C. §551(4) (“ ‘rule’ . . . includes the approval or prescription for the future of rates . . . or practices”). It is also so when the FCC has set forth rules that, for example, require certain accounting methods or insist upon certain carrier practices, while (as here) prohibiting others as unjust or unreasonable under §201(b). See, e.g. (to name a few), Verizon Tel. Cos. v. FCC, 453 F. 3d 487, 494 (CADC 2006) (rates unreasonable (and hence unlawful) if not adjusted pursuant to accounting rules ordered in FCC regulations); Cable & Wireless P. L. C. v. FCC, 166 F. 3d 1224, 1231 (CADC 1999) (failure to follow Commission-ordered settlement practices unreasonable); MCI Telecommunications Corp. v. FCC, 59 F. 3d 1407, 1414 (CADC 1995) (violation of rate-of-return prescription unlawful); In re NOS Communications, Inc., 16 FCC Rcd. 8133, 8136, ¶6 (2001) (deceptive marketing an unreasonable practice); In re Promotion of Competitive Networks in Local Telecommunications Markets, 15 FCC Rcd. 22983, 23000, ¶35 (2000) (entering into exclusive contracts with commercial building owners an unreasonable practice). Insofar as the statute’s language is concerned, to violate a regulation that lawfully implements §201(b)’s requirements is to violate the statute. See, e.g., MCI Telecommunications Corp., 59 F. 3d, at 1414 (“We have repeatedly held that a rate-of-return prescription has the force of law and that the Commission may therefore treat a violation of the prescription as a per se violation of the requirement of the Communications Act that a common carrier maintain ‘just and reasonable’ rates, see 47 U. S. C. §201(b)”); cf. Alexander v. Sandoval, 532 U. S. 275, 284 (2001) (it is “meaningless to talk about a separate cause of action to enforce the regulations apart from the statute”). That is why private litigants have long assumed that they may, as the statute says, bring an action under §207 for violation of a rule or regulation that lawfully implements §201(b). See, e.g., Oh v. AT&T Corp., 76 F. Supp. 2d 551, 556 (NJ 1999) (assuming validity of §207 suit alleging violation of §201(b) in carrier’s failure to provide services listed in FCC-approved tariff); Southwestern Bell Tel. Co. v. Allnet Communications Servs., Inc., 789 F. Supp. 302, 304–306 (ED Mo. 1992) (assuming validity of §207 suit to enforce FCC’s determination of reasonable practices related to payment of access charges by long-distance carrier to local exchange carrier); cf., e.g., Chicago & North Western Transp. Co. v. Atchison, T. & S. F. R. Co., 609 F. 2d 1221, 1224–1225 (CA7 1979) (same in respect to Interstate Commerce Act equivalents of §§201(b), 207). The difficult question, then, is not whether §207 covers actions that complain of a violation of §201(b) as lawfully implemented by an FCC regulation. It plainly does. It remains for us to decide whether the particular FCC regulation before us lawfully implements §201(b)’s “un- reasonable practice” prohibition. We now turn to that question. B In our view the FCC’s §201(b) “unreasonable practice” determination is a reasonable one; hence it is lawful. See Chevron U. S. A. Inc., 467 U. S., at 843–844. The determination easily fits within the language of the statutory phrase. That is to say, in ordinary English, one can call a refusal to pay Commission-ordered compensation despite having received a benefit from the payphone operator a “practic[e] … in connection with [furnishing a] communication service … that is … unreasonable.” The service that the payphone operator provides constitutes an integral part of the total long-distance service the payphone operator and the long-distance carrier together provide to the caller, with respect to the carriage of his or her particular call. The carrier’s refusal to divide the revenues it receives from the caller with its collaborator, the payphone operator, despite the FCC’s regulation requiring it to do so, can reasonably be called a “practice” “in connection with” the provision of that service that is “unreasonable.” Cf. post, at 1–5 (Thomas, J., dissenting). Moreover, the underlying regulated activity at issue here resembles activity that both transportation and communications agencies have long regulated. Here the agency has determined through traditional regulatory methods the cost of carrying a portion (the payphone portion) of a call that begins with a caller and proceeds through the payphone, attached wires, local communications loops, and long-distance lines to a distant call recipient. The agency allocates costs among the joint providers of the communications service and requires downstream carriers, in effect, to pay an appropriate share of revenues to upstream payphone operators. Traditionally, the FCC has determined costs of some segments of a call while requiring providers of other segments to divide related revenues. See, e.g., Smith v. Illinois Bell Telephone Co., 282 U. S. 133, 148–151 (1930) (communications). And traditionally, transportation agencies have determined costs of providing some segments of a larger transportation service (for example, the cost of providing the San Francisco–Ogden segment of a San Francisco–New York shipment) while requiring providers of other segments to divide revenues. See, e.g., New England Divisions Case, 261 U. S. 184 (1923); Chicago & North Western R. Co., 387 U. S. 326; cf. Cable & Wireless P. L. C., supra, at 1231. In all instances an agency allocates costs and provides for a related sharing of revenues. In these more traditional instances, transportation carriers and communications firms entitled to revenues under rate divisions or cost allocations might bring lawsuits under §207, or the equivalent sections of the Interstate Commerce Act, and obtain compensation or damages. See, e.g., Allnet Communication Serv., Inc. v. National Exch. Carrier Assn., Inc., 965 F. 2d 1118, 1122 (CADC 1992) (§207); Southwestern Bell Tel. Co., supra, at 305 (same); Chicago & North Western Transp. Co., supra, at 1224–1225 (Interstate Commerce Act equivalent of §207). Again, the similarities support the reasonableness of an agency’s bringing about a similar result here. We do not suggest that the FCC is required to find carriers’ failures to divide revenues to be §201(b) violations in every instance. Cf. U. S. Telepacific Corp. v. Tel-America of Salt Lake City, Inc., 19 FCC Rcd. 24552, 24555–24556, and n. 27 (2004) (citing cases). Nor do we suggest that every violation of FCC regulations is an unjust and unreasonable practice. Here there is an explicit statutory scheme, and compensation of payphone operators is necessary to the proper implementation of that scheme. Under these circumstances, the FCC’s finding that the failure to follow the order is an unreasonable practice is well within its authority. There are, of course, differences between the present “unreasonable practice” classification and the similar more traditional regulatory subject matter we have just described. For one thing, the connection between payphone operators and long-distance carriers is not a traditional “through route” between carriers. See §201(a). For another, as Global Crossing’s amici point out, the word “practice” in §201(b) has traditionally applied to a carrier practice that (unlike the present one) is the subject of a carrier tariff—i.e., a carrier agency filing that sets forth the carrier’s rates, classifications, and practices. Brief for AT&T et al. as Amici Curiae 8–11. We concede the differences. Indeed, traditionally, the filing of tariffs was “the centerpiece” of the “[Communications] Act’s regulatory scheme.” MCI Telecommunications Corp., 512 U. S., at 220. But we do not concede that these differences require a different outcome. Statutory changes enhancing the role of competition have radically reduced the role that tariffs play in regulatory supervision of what is now a mixed communications system—a system that relies in part upon competition and in part upon more traditional regulation. Yet when Congress rewrote the law to bring about these changes, it nonetheless left §201(b) in place. That fact indicates that the statute permits, indeed it suggests that Congress likely expected, the FCC to pour new substantive wine into its old regulatory bottles. See Policy and Rules Concerning the Interstate, Interexchange Marketplace, 12 FCC Rcd. 15014, 15057, ¶77 (1997) (despite the absence of tariffs, FCC’s §201 enforcement obligations have not diminished); Boomer v. AT&T Corp., 309 F. 3d 404, 422 (CA7 2002) (same). And this circumstance, by indicating that Congress did not forbid the agency to apply §201(b) differently in the changed regulatory environment, is sufficient to convince us that the FCC’s determination is lawful. That is because we have made clear that where “Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law,” a court “is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation” (or the manner in which it fills the “gap”) is “reasonable.” United States v. Mead Corp., 533 U. S. 218, 229 (2001); National Cable & Telecommunications Assn., 545 U. S., at 980; Chevron U. S. A. Inc., 467 U. S., at 843–844. Congress, in §201(b), delegated to the agency authority to “fill” a “gap,” i.e., to apply §201 through regulations and orders with the force of law. National Cable & Telecommunications Assn., supra, at 980–981. The circumstances mentioned above make clear the absence of any rele- vant congressional prohibition. And, in light of the traditional regulatory similarities that we have discussed, we can find nothing unreasonable about the FCC’s §201(b) determination. C Global Crossing, its supporting amici, and the dissents make several additional but ultimately unpersuasive arguments. First, Global Crossing claims that §207 authorizes only actions “seeking damages for statutory violations” and not for “violations merely of regulations promulgated to carry out statutory objectives.” Brief for Petitioner 12 (emphasis in original). The lawsuit before us, however, “seek[s] damages for [a] statutory violatio[n],” namely, a violation of §201(b)’s prohibition of an “unreasonable practice.” As we have pointed out, supra, at 8, §201(b)’s prohibitions have long been thought to extend to rates that diverge from FCC prescriptions, as well as rates or practices that are “unreasonable” in light of their failure to reflect rules embodied in an agency regulation. We have found no limitation of the kind Global Crossing suggests. Global Crossing seeks to draw support from Alexander v. Sandoval, 532 U. S. 275 (2001), and Adams Fruit Co. v. Barrett, 494 U. S. 638 (1990), which, Global Crossing says, hold that an agency cannot determine through regulation when a private party may bring a federal court action. Those cases do involve private actions, but they do not support Global Crossing. The cases involve different statutes and different regulations, and the Court made clear in each of those cases that its holding relied on the specific statute before it. In Sandoval, supra, at 288–289, the Court found that an implied right of action to enforce one statutory provision, 42 U. S. C. §2000d, did not extend to regulations implementing another, §2000d–1. In contrast, here we are addressing the FCC’s reasonable interpretation of ambiguous language in a substantive statutory provision, 47 U. S. C. §201(b), which Congress expressly linked to the right of action provided in §207. Nothing in Sandoval requires us to limit our deference to the FCC’s reasonable interpretation of §201(b); to the contrary, as we noted in Sandoval, it is “meaningless to talk about a separate cause of action to enforce the regulations apart from the statute. A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well.” 532 U. S., at 284. In Adams Fruit Co., supra, at 646–647, we rejected an agency interpretation of the worker-protection statute at issue as contrary to “the plain meaning of the statute’s language.” Given the differences in statutory language, context, and history, those two cases are simply beside the point. Our analysis does not change in this case simply because the practice deemed unreasonable (and hence unlawful) in the 2003 Payphone Order is violation of an FCC regulation adopted under authority of a separate statutory section, §276. The FCC here, acting under the authority of §276, has prescribed a particular rate (and a division of revenues) applicable to a portion of a long-distance service, and it has ordered carriers to reimburse payphone operators for the relevant portion of the service they jointly provide. But the conclusion that it is “unreasonable” to fail so to reimburse is not a §276 conclusion; it is a §201(b) conclusion. And courts have treated a carrier’s failure to follow closely analogous agency rate and rate-division determinations as we treat the matter at issue here. That is to say, the FCC properly implements §201(b) when it reasonably finds that the failure to follow a Commission, e.g., rate or rate-division determination made under a different statutory provision is unjust or unreasonable under §201(b). See, e.g., MCI Telecommunications Corp., 59 F. 3d, at 1414 (failure to follow a rate promulgated under §205 properly considered unreasonable under §201(b)); see also Baltimore & O. R. Co. v. Alabama Great Southern R. Co., 506 F. 2d 1265, 1270 (CADC 1974) (statutory obligation to provide reasonable rate divisions is “implemented by orders of the ICC” issued pursuant to a separate statutory provision). Moreover, in resting our conclusion upon the analogy with rate setting and rate divisions, the traditional, historical subject matter of §201(b), we avoid authorizing the FCC to turn §§201(b) and 207 into a back-door remedy for violation of FCC regulations. Second, Justice Scalia, dissenting, says that the “only serious issue presented by this case [is] whether a practice that is not in and of itself unjust or unreasonable can be rendered such (and thus rendered in violation of the Act itself) because it violates a substantive regulation of the Commission.” Post, at 2–3. He answers this question “no,” because, in his view, a “violation of a substantive regulation promulgated by the Commission is not a violation of the Act, and thus does not give rise to a private cause of action.” Post, at 3. We cannot accept either Justice Scalia’s statement of the “serious issue” or his answer. We do not accept his statement of the issue because whether the practice is “in and of itself” unreasonable is irrelevant. The FCC has authoritatively ruled that carriers must compensate payphone operators. The only practice before us, then, and the only one we consider, is the carrier’s violation of that FCC regulation requiring the carrier to pay the payphone operator a fair portion of the total cost of carrying a call that they jointly carried—each supplying a partial portion of the total carriage. A practice of violating the FCC’s order to pay a fair share would seem fairly characterized in ordinary English as an “unjust practice,” so why should the FCC not call it the same under §201(b)? Nor can we agree with Justice Scalia’s claim that a “violation of a substantive regulation promulgated by the Commission is not a violation of” §201(b) of the Act when, as here, the Commission has explicitly and reasonably ruled that the particular regulatory violation does violate §201(b). (Emphasis added.) And what has the substantive/interpretive distinction that Justice Scalia emphasizes, post, at 3, to do with the matter? There is certainly no reference to this distinction in §201(b); the text does not suggest that, of all violations of regulations, only violations of interpretive regulations can amount to unjust or unreasonable practices. Why believe that Congress, which scarcely knew of this distinction a century ago before the blossoming of administrative law, would care which kind of regulation was at issue? And even if this distinction were relevant, the FCC has long set forth what we now would call “substantive” (or “legislative”) rules under §205. Cf. 1 R. Pierce, Administrative Law Treatise §6.4, p. 325 (4th ed. 2002); post, at 4. And violations of those substantive §205 regulations have clearly been deemed violations of §201(b). E.g., MCI Telecommunications Corp., 59 F. 3d, at 1414. Conversely, we have found no case at all in which a private plaintiff was kept out of federal court because the §201(b) violation it challenged took the form of a “substantive regulation” rather than an “interpretive regulation.” Insofar as Justice Scalia uses adjectives such as “traditional” or “textually based” to describe his distinctions, post, at 4, and “novel” or “absurd” to describe ours, post, at 5, 2, we would simply note our disagreement. We concede that Justice Scalia cites three sources in support of his theory. See post, at 3. But, in our view, those sources offer him no support. None of those sources involved an FCC application of, or an FCC interpretation of, the section at issue here, namely §201(b). Nor did any involve a regulation—substantive or interpretive—promulgated subsequent to the authority of §201(b). Thus none is relevant to the case at hand. See APCC Servs., Inc. v. Sprint Communications Co., 418 F. 3d 1238, 1247 (CADC 2005) (per curiam) (“There was no authoritative interpretation of §201(b) in this case”); Greene v. Sprint Communications Co., 340 F. 3d 1047, 1052 (CA9 2003) (violation of substantive regulation does not violate §276; silent as to §201(b)). The single judge who thought that the FCC had authoritatively interpreted §201(b) (as has occurred in the case before us) would have reached the same conclusion that we do. APCC Servs., Inc., supra, at 1254. (D. H. Ginsburg, C. J., dissenting) (finding a private cause of action, because there was “clearly an authoritative interpretation of §201(b)” that deemed the practice in question unlawful). See also Huber §3.14.3, p. 317 (no discussion of §201(b)). Third, Justice Thomas (who also does not adopt Justice Scalia’s arguments) disagrees with the FCC’s interpretation of the term “practice.” He, along with Global Crossing, claims instead that §§201(a) and (b) concern only practices that harm carrier customers, not carrier suppliers. Post, at 2–4 (dissenting opinion); Brief for Petitioner 37–38. But that is not what those sections say. Nor does history offer this position significant support. A violation of a regulation or order dividing rates among railroads, for example, would likely have harmed another carrier, not a shipper. See, e.g., Chicago & North Western Transp. Co., 609 F. 2d, at 1225–1226 (“Act … provides for the regulation of inter-carrier relations as a part of its general rate policy”). Once one takes account of this fact, it seems reasonable, not unreasonable, to include as a §201(b) (and §207) beneficiary a firm that performs services roughly analogous to the transportation of one segment of a longer call. We are not here dealing with a firm that supplies office supplies or manual labor. Cf., e.g., Missouri Pacific R. Co. v. Norwood, 283 U. S. 249, 257 (1931) (“practice” in §1 of the Interstate Commerce Act does not encompass employment decisions). The long-distance carrier ordered by the FCC to compensate the payphone operator is so ordered in its role as a provider of communications services, not as a consumer of office supplies or the like. It is precisely because the carrier and the payphone operator jointly provide a communications service to the caller that the carrier is ordered to share with the payphone operator the revenue that only the carrier is permitted to demand from the caller. Cf. Cable & Wireless P. L. C., 166 F. 3d, at 1231 (finding that §201(b) enables the Commission to regulate not “only the terms on which U. S. carriers offer telecommunication services to the public,” but also “the prices U. S. carriers pay” to foreign carriers providing the foreign segment of an international call). Fourth, Global Crossing argues that the FCC’s “unreasonable practice” determination is unlawful because it is inadequately reasoned. We concede that the FCC’s initial opinion simply states that the carrier’s practice is unreasonable under §201(b). But the context and cross-referenced opinions, 2003 Payphone Order, 18 FCC Rcd., at 19990, ¶32 (citing American Public Communications Council v. FCC, 215 F. 3d 51, 56 (CADC 2000)), make the FCC’s rationale obvious, namely, that in light of the history that we set forth supra, at 7–9, it is unreasonable for a carrier to violate the FCC’s mandate that it pay compensation. See also In re APCC Servs., Inc. v. NetworkIP, LLC, 21 FCC Rcd. 10488, 10493–10495, ¶¶ 13–16 (2006) (Order) (spelling out the reasoning). Fifth Global Crossing argues that a different statutory provision, §276, see supra, at 5, prohibits the FCC’s §201(b) classification. Brief for Petitioner 26–28. But §276 simply requires the FCC to “take all actions necessary … to prescribe regulations that … establish a per call compensation plan to ensure” that payphone operators “are fairly compensated.” 47 U. S. C. §276(b)(1). It nowhere forbids the FCC to rely on §201(b). Rather, by helping to secure enforcement of the mandated regulations the FCC furthers basic §276 purposes. Finally, Global Crossing seeks to rest its claim of a §276 prohibition upon the fact that §276 requires regulations that secure compensation for “every completed intrastate,” as well as every “interstate” payphone-related call, while §201(b) (referring to §201(a)) extends only to “interstate or foreign” communication. Brief for Petitioner 37. But Global Crossing makes too much of too little. We can assume (for argument’s sake) that §201(b) may consequently apply only to a portion of the Compensation Order’s requirements. But cf., e.g., Louisiana Pub. Serv. Comm’n, 476 U. S., at 375, n. 4 (suggesting approval of FCC authority where it is “not possible to separate the interstate and the intrastate components”). But even if that is so (and we repeat that we do not decide this question), the FCC’s classification will help to achieve a substantial portion of its §276 compensatory mission. And we cannot imagine why Congress would have (implicitly in this §276 language) wished to forbid the FCC from concluding that an interstate half loaf is better than none. For these reasons, the judgment of the Ninth Circuit is affirmed. It is so ordered. APPENDIXES TO OPINION OF THE COURT A In re Implementation of the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 1996, 14 FCC Rcd. 2545, 2631–2632, ¶¶190–191 (1999) (Compensation Order). In re the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 1996, 18 FCC Rcd. 19975, 19990, ¶32 (2003) (2003 Payphone Order). B Communications Act §201: “(a) It shall be the duty of every common carrier engaged in interstate or foreign communication by wire or radio to furnish such communication service upon reasonable request therefor; and, in accordance with the orders of the Commission, in cases where the Commission, after opportunity for hearing, finds such action necessary or desirable in the public interest, to establish physical connections with other carriers, to establish through routes and charges applicable thereto and the divisions of such charges, and to establish and provide facilities and regulations for operating such through routes. “(b) All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful: Provided, That communications by wire or radio subject to this chapter may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as the Commission may decide to be just and reasonable, and different charges may be made for the different classes of communications: Provided further, That nothing in this chapter or in any other provision of law shall be construed to prevent a common carrier subject to this chapter from entering into or operating under any contract with any common carrier not subject to this chapter, for the exchange of their services, if the Commission is of the opinion that such contract is not contrary to the public interest: Provided further, That nothing in this chapter or in any other provision of law shall prevent a common carrier subject to this chapter from furnishing reports of positions of ships at sea to newspapers of general circulation, either at a nominal charge or without charge, provided the name of such common carrier is displayed along with such ship position reports. The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.” 47 U. S. C. §201. Communications Act §206: “In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney’s fee, to be fixed by the court in every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs in the case.” 47 U. S. C. §206. Communications Act §207: “Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies.” 47 U. S. C. §207.
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550.US.124
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Following this Court’s Stenberg v. Carhart, 530 U. S. 914, decision that Nebraska’s “partial birth abortion” statute violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Roe v. Wade, 410 U. S. 113, Congress passed the Partial-Birth Abortion Ban Act of 2003 (Act) to proscribe a particular method of ending fetal life in the later stages of pregnancy. The Act does not regulate the most common abortion procedures used in the first trimester of pregnancy, when the vast majority of abortions take place. In the usual second-trimester procedure, “dilation and evacuation” (D&E), the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. The procedure that prompted the federal Act and various state statutes, including Nebraska’s, is a variation of the standard D&E, and is herein referred to as “intact D&E.” The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull. The Act responded to Stenberg in two ways. First, Congress found that unlike this Court in Stenberg, it was not required to accept the District Court’s factual findings, and that that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. Second, the Act’s language differs from that of the Nebraska statute struck down in Stenberg. Among other things, the Act prohibits “knowingly perform[ing] a partial-birth abortion … that is [not] necessary to save the life of a mother,” 18 U. S. C. §1531(a). It defines “partial-birth abortion,” §1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body … , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body … , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and “(B) performs the overt act, other than completion of delivery, that kills the fetus.” In No. 05–380, respondent abortion doctors challenged the Act’s constitutionality on its face, and the Federal District Court granted a permanent injunction prohibiting petitioner Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. The court found the Act unconstitutional because it (1) lacked an exception allowing the prohibited procedure where necessary for the mother’s health and (2) covered not merely intact D&E but also other D&Es. Affirming, the Eighth Circuit found that a lack of consensus existed in the medical community as to the banned procedure’s necessity, and thus Stenberg required legislatures to err on the side of protecting women’s health by including a health exception. In No. 05–1382, respondent abortion advocacy groups brought suit challenging the Act. The District Court enjoined the Attorney General from enforcing the Act, concluding it was unconstitutional on its face because it (1) unduly burdened a woman’s ability to choose a second-trimester abortion, (2) was too vague, and (3) lacked a health exception as required by Stenberg. The Ninth Circuit agreed and affirmed. Held: Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception. Pp. 14–39. 1. The Casey Court reaffirmed what it termed Roe’s three-part “essential holding”: First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman’s life or health. And third, the State has legitimate interests from the pregnancy’s outset in protecting the health of the woman and the life of the fetus that may become a child. 505 U. S., at 846. Though all three are implicated here, it is the third that requires the most extended discussion. In deciding whether the Act furthers the Government’s legitimate interest in protecting fetal life, the Court assumes, inter alia, that an undue burden on the previability abortion right exists if a regulation’s “purpose or effect is to place a substantial obstacle in the [woman’s] path,” id., at 878, but that “[r]egulations which do no more than create a structural mechanism by which the State … may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose,” id., at 877. Casey struck a balance that was central to its holding, and the Court applies Casey’s standard here. A central premise of Casey’s joint opinion—that the government has a legitimate, substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments below. Pp. 14–16. 2. The Act, on its face, is not void for vagueness and does not impose an undue burden from any overbreadth. Pp. 16–26. (a) The Act’s text demonstrates that it regulates and proscribes performing the intact D&E procedure. First, since the doctor must “vaginally delive[r] a living fetus,” §1531(b)(1)(A), the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery, e.g., hysterotomy or hysterectomy. And it applies both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb. Second, because the Act requires the living fetus to be delivered to a specific anatomical landmark depending on the fetus’ presentation, ibid., an abortion not involving such partial delivery is permitted. Third, because the doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered fetus,” §1531(b)(1)(B), the “overt act” must be separate from delivery. It must also occur after delivery to an anatomical landmark, since killing “the partially delivered” fetus, when read in context, refers to a fetus that has been so delivered, ibid. Fourth, given the Act’s scienter requirements, delivery of a living fetus past an anatomical landmark by accident or inadvertence is not a crime because it is not “deliberat[e] and intentiona[l], §1531(b)(1)(A). Nor is such a delivery prohibited if the fetus [has not] been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” Ibid. Pp. 16–18. (b) The Act is not unconstitutionally vague on its face. It satisfies both requirements of the void-for-vagueness doctrine. First, it provides doctors “of ordinary intelligence a reasonable opportunity to know what is prohibited,” Grayned v. City of Rockford, 408 U. S. 104, 108, setting forth “relatively clear guidelines as to prohibited conduct” and providing “objective criteria” to evaluate whether a doctor has performed a prohibited procedure, Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513, 525–526. Second, it does not encourage arbitrary or discriminatory enforcement. Kolender v. Lawson, 461 U. S. 352, 357. Its anatomical landmarks “establish minimal guidelines to govern law enforcement,” Smith v. Goguen, 415 U. S. 566, 574, and its scienter requirements narrow the scope of its prohibition and limit prosecutorial discretion, see Kolender, supra, at 358. Respondents’ arbitrary enforcement arguments, furthermore, are somewhat speculative, since this is a preenforcement challenge. Pp. 18–20. (c) The Court rejects respondents’ argument that the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. Pp. 20–26. (i) The Act’s text discloses that it prohibits a doctor from intentionally performing an intact D&E. Its dual prohibitions correspond with the steps generally undertaken in this procedure: The doctor (1) delivers the fetus until its head lodges in the cervix, usually past the anatomical landmark for a breech presentation, see §1531(b)(1)(A), and (2) proceeds to the overt act of piercing or crushing the fetal skull after the partial delivery, see §1531(b)(1)(B). The Act’s scienter requirements limit its reach to those physicians who carry out the intact D&E, with the intent to undertake both steps at the outset. The Act excludes most D&Es in which the doctor intends to remove the fetus in pieces from the outset. This interpretation is confirmed by comparing the Act with the Nebraska statute in Stenberg. There, the Court concluded that the statute encompassed D&E, which “often involve[s] a physician pulling a ‘substantial portion’ of a still living fetus … , say, an arm or leg, into the vagina prior to the death of the fetus,” 530 U. S., at 939, and rejected the Nebraska Attorney General’s limiting interpretation that the statute’s reference to a “procedure” that “kill[s] the unborn child” was to a distinct procedure, not to the abortion procedure as a whole, id., at 943. It is apparent Congress responded to these concerns because the Act adopts the phrase “delivers a living fetus,” 18 U. S. C. §1531(b)(1)(A), instead of “ ‘delivering … a living unborn child, or a substantial portion thereof,’ ” 530 U. S., at 938, thereby targeting extraction of an entire fetus rather than removal of fetal pieces; identifies specific anatomical landmarks to which the fetus must be partially delivered, §1531(b)(1)(A), thereby clarifying that the removal of a small portion of the fetus is not prohibited; requires the fetus to be delivered so that it is partially “outside the [mother’s] body,” §1531(b)(1)(A), thereby establishing that delivering a substantial portion of the fetus into the vagina would not subject a doctor to criminal sanctions; and adds the overt-act requirement, §1531(b)(1), thereby making the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced). Finally, the canon of constitutional avoidance, see, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575, extinguishes any lingering doubt. Interpreting the Act not to prohibit standard D&E is the most reasonable reading and understanding of its terms. Pp. 20–24. (ii) Respondents’ contrary arguments are unavailing. The contention that any D&E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks because doctors cannot predict the amount the cervix will dilate before the procedure does not take account of the Act’s intent requirements, which preclude liability for an accidental intact D&E. The evidence supports the legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance, belying any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E. That many doctors begin every D&E with the objective of removing the fetus as intact as possible based on their belief that this is safer does not prove, as respondents suggest, that every D&E might violate the Act, thereby imposing an undue burden. It demonstrates only that those doctors must adjust their conduct to the law by not attempting to deliver the fetus to an anatomical landmark. Respondents have not shown that requiring doctors to intend dismemberment before such a delivery will prohibit the vast majority of D&E abortions. Pp. 24–26. 3. The Act, measured by its text in this facial attack, does not impose a “substantial obstacle” to late-term, but previability, abortions, as prohibited by the Casey plurality, 505 U. S., at 878. Pp. 26–37. (a) The contention that the Act’s congressional purpose was to create such an obstacle is rejected. The Act’s stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community’s ethics and reputation. The government undoubtedly “has an interest in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U. S. 702, 731. Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned. Glucksberg, supra, at 732–735, and n. 23. The Act also recognizes that respect for human life finds an ultimate expression in a mother’s love for her child. Whether to have an abortion requires a difficult and painful moral decision, Casey, 505 U. S., at 852–853, which some women come to regret. In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State. Id., at 873. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process. Pp. 26–30. (b) The Act’s failure to allow the banned procedure’s use where “ ‘necessary, in appropriate medical judgment, for preservation of the [mother’s] health,’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327–328, does not have the effect of imposing an unconstitutional burden on the abortion right. The Court assumes the Act’s prohibition would be unconstitutional, under controlling precedents, if it “subject[ed] [women] to significant health risks.” Id., at 328. Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. The Court’s precedents instruct that the Act can survive facial attack when this medical uncertainty persists. See, e.g., Kansas v. Hendricks, 521 U. S. 346, 360, n. 3. This traditional rule is consistent with Casey, which confirms both that the State has an interest in promoting respect for human life at all stages in the pregnancy, and that abortion doctors should be treated the same as other doctors. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Other considerations also support the Court’s conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available. In addition, if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of “a living fetus,” 18 U. S. C. §1531(b)(1)(A). Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 77–79, distinguished. The Court rejects certain of the parties’ arguments. On the one hand, the Attorney General’s contention that the Act should be upheld based on the congressional findings alone fails because some of the Act’s recitations are factually incorrect and some of the important findings have been superseded. Also unavailing, however, is respondents’ contention that an abortion regulation must contain a health exception if “substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health, ” Stenberg, 530 U. S., at 938. Interpreting Stenberg as leaving no margin for legislative error in the face of medical uncertainty is too exacting a standard. Marginal safety considerations, including the balance of risks, are within the legislative competence where, as here, the regulation is rational and pursues legitimate ends, and standard, safe medical options are available. Pp. 31–37. 4. These facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. Cf. Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. ___, ___. This is the proper manner to protect the woman’s health if it can be shown that in discrete and well-defined instances a condition has or is likely to occur in which the procedure prohibited by the Act must be used. No as-applied challenge need be brought if the Act’s prohibition threatens a woman’s life, because the Act already contains a life exception. 18 U. S. C. §1531(a). Pp. 37–39. No. 05–380, 413 F. 3d 791; 05–1382, 435 F. 3d 1163, reversed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion, in which Scalia, J., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. Together with No. 05–1382, Gonzales, Attorney General v. Planned Parenthood Federation of America, Inc., et al., on certiorari to the United States Court of Appeals for the Ninth Circuit.
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These cases require us to consider the validity of the Partial-Birth Abortion Ban Act of 2003 (Act), 18 U. S. C. §1531 (2000 ed., Supp. IV), a federal statute regulating abortion procedures. In recitations preceding its operative provisions the Act refers to the Court’s opinion in Stenberg v. Carhart, 530 U. S. 914 (2000), which also addressed the subject of abortion procedures used in the later stages of pregnancy. Compared to the state statute at issue in Stenberg, the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it. In No. 05–380 (Carhart) respondents are LeRoy Carhart, William G. Fitzhugh, William H. Knorr, and Jill L. Vibhakar, doctors who perform second-trimester abortions. These doctors filed their complaint against the Attorney General of the United States in the United States District Court for the District of Nebraska. They challenged the constitutionality of the Act and sought a permanent injunction against its enforcement. Carhart v. Ashcroft, 331 F. Supp. 2d 805 (2004). In 2004, after a 2-week trial, the District Court granted a permanent injunction that prohibited the Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. Id., at 1048. The Court of Appeals for the Eighth Circuit affirmed. 413 F. 3d 791 (2005). We granted certiorari. 546 U. S. 1169 (2006). In No. 05–1382 (Planned Parenthood) respondents are Planned Parenthood Federation of America, Inc., Planned Parenthood Golden Gate, and the City and County of San Francisco. The Planned Parenthood entities sought to enjoin enforcement of the Act in a suit filed in the United States District Court for the Northern District of California. Planned Parenthood Federation of Am. v. Ashcroft, 320 F. Supp. 2d 957 (2004). The City and County of San Francisco intervened as a plaintiff. In 2004, the District Court held a trial spanning a period just short of three weeks, and it, too, enjoined the Attorney General from enforcing the Act. Id., at 1035. The Court of Appeals for the Ninth Circuit affirmed. 435 F. 3d 1163 (2006). We granted certiorari. 547 U. S. ___ (2006). I A The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in Stenberg, to discuss abortion procedures in some detail. Three United States District Courts heard extensive evidence describing the procedures. In addition to the two courts involved in the instant cases the District Court for the Southern District of New York also considered the constitutionality of the Act. Nat. Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436 (2004). It found the Act unconstitutional, id., at 493, and the Court of Appeals for the Second Circuit affirmed, Nat. Abortion Federation v. Gonzales, 437 F. 3d 278 (2006). The three District Courts relied on similar medical evidence; indeed, much of the evidence submitted to the Carhart court previously had been submitted to the other two courts. 331 F. Supp. 2d, at 809–810. We refer to the District Courts’ exhaustive opinions in our own discussion of abortion procedures. Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child’s development. Between 85 and 90 percent of the approximately 1.3 million abortions performed each year in the United States take place in the first three months of pregnancy, which is to say in the first trimester. Planned Parenthood, 320 F. Supp. 2d, at 960, and n. 4; App. in No. 05–1382, pp. 45–48. The most common first-trimester abortion method is vacuum aspiration (otherwise known as suction curettage) in which the physician vacuums out the embryonic tissue. Early in this trimester an alternative is to use medication, such as mifepristone (commonly known as RU–486), to terminate the pregnancy. Nat. Abortion Federation, supra, at 464, n. 20. The Act does not regulate these procedures. Of the remaining abortions that take place each year, most occur in the second trimester. The surgical procedure referred to as “dilation and evacuation” or “D&E” is the usual abortion method in this trimester. Planned Parenthood, 320 F. Supp. 2d, at 960–961. Although individual techniques for performing D&E differ, the general steps are the same. A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. Nat. Abortion Federation, supra, at 465; App. in No. 05–1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e.g., Carhart, 331 F. Supp. 2d, at 852, 856, 859, 862–865, 868, 870, 873–874, 876–877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less. Nat. Abortion Federation, supra, at 464–465; Planned Parenthood, supra, at 961. After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. See, e.g., Nat. Abortion Federation, supra, at 465; Planned Parenthood, supra, at 962. Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus’ body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit. Carhart, supra, at 907–912; Nat. Abortion Federation, supra, at 474–475. The abortion procedure that was the impetus for the numerous bans on “partial-birth abortion,” including the Act, is a variation of this standard D&E. See M. Haskell, Dilation and Extraction for Late Second Trimester Abortion (1992), 1 Appellant’s App. in No. 04–3379 (CA8), p. 109 (hereinafter Dilation and Extraction). The medical community has not reached unanimity on the appropriate name for this D&E variation. It has been referred to as “intact D&E,” “dilation and extraction” (D&X), and “intact D&X.” Nat. Abortion Federation, supra, at 440, n. 2; see also F. Cunningham et al., Williams Obstetrics 243 (22d ed. 2005) (identifying the procedure as D&X); Danforth’s Obstetrics and Gynecology 567 (J. Scott, R. Gibbs, B. Karlan, & A. Haney eds. 9th ed. 2003) (identifying the procedure as intact D&X); M. Paul, E. Lichtenberg, L. Borgatta, D. Grimes, & P. Stubblefield, A Clinician’s Guide to Medical and Surgical Abortion 136 (1999) (identifying the procedure as intact D&E). For discussion purposes this D&E variation will be referred to as intact D&E. The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes. There are no comprehensive statistics indicating what percentage of all D&Es are performed in this manner. Intact D&E, like regular D&E, begins with dilation of the cervix. Sufficient dilation is essential for the procedure. To achieve intact extraction some doctors thus may attempt to dilate the cervix to a greater degree. This approach has been called “serial” dilation. Carhart, supra, at 856, 870, 873; Planned Parenthood, supra, at 965. Doctors who attempt at the outset to perform intact D&E may dilate for two full days or use up to 25 osmotic dilators. See, e.g., Dilation and Extraction 110; Carhart, supra, at 865, 868, 876, 886. In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified: “If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don’t close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible.” App. in No. 05–1382, at 74. Rotating the fetus as it is being pulled decreases the odds of dismemberment. Carhart, supra, at 868–869; App. in No. 05–380, pp. 40–41; 5 Appellant’s App. in No. 04–3379 (CA8), p. 1469. A doctor also “may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level—sometimes using both his hand and a forceps—to exert traction to retrieve the fetus intact until the head is lodged in the [cervix].” Carhart, 331 F. Supp. 2d, at 886–887. Intact D&E gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110–111. In the usual intact D&E the fetus’ head lodges in the cervix, and dilation is insufficient to allow it to pass. See, e.g., ibid.; App. in No. 05–380, at 577; App. in No. 05–1382, at 74, 282. Haskell explained the next step as follows: “ ‘At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and “hooks” the shoulders of the fetus with the index and ring fingers (palm down). “ ‘While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger. “ ‘[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening. “ ‘The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.’ ” H. R. Rep. No. 108–58, p. 3 (2003). This is an abortion doctor’s clinical description. Here is another description from a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee: “ ‘Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms—everything but the head. The doctor kept the head right inside the uterus… . “ ‘The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. “ ‘The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp… . “ ‘He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.’ ” Ibid. Dr. Haskell’s approach is not the only method of killing the fetus once its head lodges in the cervix, and “the process has evolved” since his presentation. Planned Parenthood, 320 F. Supp. 2d, at 965. Another doctor, for example, squeezes the skull after it has been pierced “so that enough brain tissue exudes to allow the head to pass through.” App. in No. 05–380, at 41; see also Carhart, supra, at 866–867, 874. Still other physicians reach into the cervix with their forceps and crush the fetus’ skull. Carhart, supra, at 858, 881. Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it. Id., at 864, 878; see also Planned Parenthood, supra, at 965. Some doctors performing an intact D&E attempt to remove the fetus without collapsing the skull. See Carhart, supra, at 866, 869. Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because “the objective of [his] procedure is to perform an abortion,” not a birth. App. in No. 05–1382, at 408–409. The doctor thus answered in the affirmative when asked whether he would “hold the fetus’ head on the internal side of the [cervix] in order to collapse the skull” and kill the fetus before it is born. Id., at 409; see also Carhart, supra, at 862, 878. Another doctor testified he crushes a fetus’ skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has “some viability to it, some movement of limbs,” according to this doctor, “[is] always a difficult situation.” App. in No. 05–380, at 94; see Carhart, supra, at 858. D&E and intact D&E are not the only second-trimester abortion methods. Doctors also may abort a fetus through medical induction. The doctor medicates the woman to induce labor, and contractions occur to deliver the fetus. Induction, which unlike D&E should occur in a hospital, can last as little as 6 hours but can take longer than 48. It accounts for about five percent of second-trimester abortions before 20 weeks of gestation and 15 percent of those after 20 weeks. Doctors turn to two other methods of second-trimester abortion, hysterotomy and hysterectomy, only in emergency situations because they carry increased risk of complications. In a hysterotomy, as in a cesarean section, the doctor removes the fetus by making an incision through the abdomen and uterine wall to gain access to the uterine cavity. A hysterectomy requires the removal of the entire uterus. These two procedures represent about .07% of second-trimester abortions. Nat. Abortion Federation, 330 F. Supp. 2d, at 467; Planned Parenthood, supra, at 962–963. B After Dr. Haskell’s procedure received public attention, with ensuing and increasing public concern, bans on “ ‘partial birth abortion’ ” proliferated. By the time of the Stenberg decision, about 30 States had enacted bans designed to prohibit the procedure. 530 U. S., at 995–996, and nn. 12–13 (Thomas, J., dissenting); see also H. R. Rep. No. 108–58, at 4–5. In 1996, Congress also acted to ban partial-birth abortion. President Clinton vetoed the congressional legislation, and the Senate failed to override the veto. Congress approved another bill banning the procedure in 1997, but President Clinton again vetoed it. In 2003, after this Court’s decision in Stenberg, Congress passed the Act at issue here. H. R. Rep. No. 108–58, at 12–14. On November 5, 2003, President Bush signed the Act into law. It was to take effect the following day. 18 U. S. C. §1531(a) (2000 ed., Supp. IV). The Act responded to Stenberg in two ways. First, Congress made factual findings. Congress determined that this Court in Stenberg “was required to accept the very questionable findings issued by the district court judge,” §2(7), 117 Stat. 1202, notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 768, ¶(7) (Congressional Findings), but that Congress was “not bound to accept the same factual findings,” ibid., ¶(8). Congress found, among other things, that “[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” Id., at 767, ¶(1). Second, and more relevant here, the Act’s language differs from that of the Nebraska statute struck down in Stenberg. See 530 U. S., at 921–922 (quoting Neb. Rev. Stat. Ann. §§28–328(1), 28–326(9) (Supp. 1999)). The operative provisions of the Act provide in relevant part: “(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment. “(b) As used in this section— “(1) the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion— “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and “(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and “(2) the term ‘physician’ means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section. . . . . . “(d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. “(2) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place. “(e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section.” 18 U. S. C. §1531 (2000 ed., Supp. IV). The Act also includes a provision authorizing civil actions that is not of relevance here. §1531(c). C The District Court in Carhart concluded the Act was unconstitutional for two reasons. First, it determined the Act was unconstitutional because it lacked an exception allowing the procedure where necessary for the health of the mother. 331 F. Supp. 2d, at 1004–1030. Second, the District Court found the Act deficient because it covered not merely intact D&E but also certain other D&Es. Id., at 1030–1037. The Court of Appeals for the Eighth Circuit addressed only the lack of a health exception. 413 F. 3d, at 803–804. The court began its analysis with what it saw as the appropriate question—“whether ‘substantial medical authority’ supports the medical necessity of the banned procedure.” Id., at 796 (quoting Stenberg, 530 U. S., at 938). This was the proper framework, according to the Court of Appeals, because “when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women’s health by including a health exception.” 413 F. 3d, at 796. The court rejected the Attorney General’s attempt to demonstrate changed evidentiary circumstances since Stenberg and considered itself bound by Stenberg’s conclusion that a health exception was required. 413 F. 3d, at 803 (explaining “[t]he record in [the] case and the record in Stenberg [were] similar in all significant respects”). It invalidated the Act. Ibid. D The District Court in Planned Parenthood concluded the Act was unconstitutional “because it (1) pose[d] an undue burden on a woman’s ability to choose a second trimester abortion; (2) [was] unconstitutionally vague; and (3) require[d] a health exception as set forth by … Stenberg.” 320 F. Supp. 2d, at 1034–1035. The Court of Appeals for the Ninth Circuit agreed. Like the Court of Appeals for the Eighth Circuit, it concluded the absence of a health exception rendered the Act unconstitutional. The court interpreted Stenberg to require a health exception unless “there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of women.” 435 F. 3d, at 1173. Even after applying a deferential standard of review to Congress’ factual findings, the Court of Appeals determined “substantial disagreement exists in the medical community regarding whether” the procedures prohibited by the Act are ever necessary to preserve a woman’s health. Id., at 1175–1176. The Court of Appeals concluded further that the Act placed an undue burden on a woman’s ability to obtain a second-trimester abortion. The court found the textual differences between the Act and the Nebraska statute struck down in Stenberg insufficient to distinguish D&E and intact D&E. 435 F. 3d, at 1178–1180. As a result, according to the Court of Appeals, the Act imposed an undue burden because it prohibited D&E. Id., at 1180–1181. Finally, the Court of Appeals found the Act void for vagueness. Id., at 1181. Abortion doctors testified they were uncertain which procedures the Act made criminal. The court thus concluded the Act did not offer physicians clear warning of its regulatory reach. Id., at 1181–1184. Resting on its understanding of the remedial framework established by this Court in Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–330 (2006), the Court of Appeals held the Act was unconstitutional on its face and should be permanently enjoined. 435 F. 3d, at 1184–1191. II The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), did not find support from all those who join the instant opinion. See id., at 979–1002 (Scalia, J., joined by Thomas, J., inter alios, concurring in judgment in part and dissenting in part). Whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals. Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary: “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.” 505 U. S., at 846 (opinion of the Court). Though all three holdings are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child. To implement its holding, Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. 505 U. S., at 875–876, 878 (plurality opinion). On this point Casey overruled the holdings in two cases because they undervalued the State’s interest in potential life. See id., at 881–883 (joint opinion) (overruling Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986) and Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983)). We assume the following principles for the purposes of this opinion. Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id., at 878. On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar. III We begin with a determination of the Act’s operation and effect. A straightforward reading of the Act’s text demonstrates its purpose and the scope of its provisions: It regulates and proscribes, with exceptions or qualifications to be discussed, performing the intact D&E procedure. Respondents agree the Act encompasses intact D&E, but they contend its additional reach is both unclear and excessive. Respondents assert that, at the least, the Act is void for vagueness because its scope is indefinite. In the alternative, respondents argue the Act’s text proscribes all D&Es. Because D&E is the most common second-trimester abortion method, respondents suggest the Act imposes an undue burden. In this litigation the Attorney General does not dispute that the Act would impose an undue burden if it covered standard D&E. We conclude that the Act is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face. A The Act punishes “knowingly perform[ing]” a “partial-birth abortion.” §1531(a) (2000 ed., Supp. IV). It defines the unlawful abortion in explicit terms. §1531(b)(1). First, the person performing the abortion must “vaginally delive[r] a living fetus.” §1531(b)(1)(A). The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy). The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. See, e.g., Planned Parenthood, 320 F. Supp. 2d, at 971–972. We do not understand this point to be contested by the parties. Second, the Act’s definition of partial-birth abortion requires the fetus to be delivered “until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.” §1531(b)(1)(A) (2000 ed., Supp. IV). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these “anatomical ‘landmarks’ ”—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply. Brief for Petitioner in No. 05–380, p. 46. Third, to fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.” §1531(b)(1)(B) (2000 ed., Supp. IV). For purposes of criminal liability, the overt act causing the fetus’ death must be separate from delivery. And the overt act must occur after the delivery to an anatomical landmark. This is because the Act proscribes killing “the partially delivered” fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark. Ibid. Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have “deliberately and intentionally” delivered the fetus to one of the Act’s anatomical landmarks. §1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” Ibid. If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind. See generally 1 W. LaFave, Substantive Criminal Law §5.1 (2d ed. 2003) (hereinafter LaFave); 1 C. Torcia, Wharton’s Criminal Law §27 (15th ed. 1993). B Respondents contend the language described above is indeterminate, and they thus argue the Act is unconstitutionally vague on its face. “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983); Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513, 525 (1994). The Act satisfies both requirements. The Act provides doctors “of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). Indeed, it sets forth “relatively clear guidelines as to prohibited conduct” and provides “objective criteria” to evaluate whether a doctor has performed a prohibited procedure. Posters ‘N’ Things, supra, at 525–526. Unlike the statutory language in Stenberg that prohibited the delivery of a “ ‘substantial portion’ ” of the fetus—where a doctor might question how much of the fetus is a substantial portion—the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other. Stenberg, 530 U. S., at 922 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). Doctors performing D&E will know that if they do not deliver a living fetus to an anatomical landmark they will not face criminal liability. This conclusion is buttressed by the intent that must be proved to impose liability. The Court has made clear that scienter requirements alleviate vagueness concerns. Posters ‘N’ Things, supra, at 526; see also Colautti v. Franklin, 439 U. S. 379, 395 (1979) (“This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea”). The Act requires the doctor deliberately to have delivered the fetus to an anatomical landmark. §1531(b)(1)(A) (2000 ed., Supp. IV). Because a doctor performing a D&E will not face criminal liability if he or she delivers a fetus beyond the prohibited point by mistake, the Act cannot be described as “a trap for those who act in good faith.” Colautti, supra, at 395 (internal quotation marks omitted). Respondents likewise have failed to show that the Act should be invalidated on its face because it encourages arbitrary or discriminatory enforcement. Kolender, supra, at 357. Just as the Act’s anatomical landmarks provide doctors with objective standards, they also “establish minimal guidelines to govern law enforcement.” Smith v. Goguen, 415 U. S. 566, 574 (1974). The scienter requirements narrow the scope of the Act’s prohibition and limit prosecutorial discretion. It cannot be said that the Act “vests virtually complete discretion in the hands of [law enforcement] to determine whether the [doctor] has satisfied [its provisions].” Kolender, supra, at 358 (invalidating a statute regulating loitering). Respondents’ arguments concerning arbitrary enforcement, furthermore, are somewhat speculative. This is a preenforcement challenge, where “no evidence has been, or could be, introduced to indicate whether the [Act] has been enforced in a discriminatory manner or with the aim of inhibiting [constitutionally protected conduct].” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 503 (1982). The Act is not vague. C We next determine whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. A review of the statutory text discloses the limits of its reach. The Act prohibits intact D&E; and, notwithstanding respondents’ arguments, it does not prohibit the D&E procedure in which the fetus is removed in parts. 1 The Act prohibits a doctor from intentionally performing an intact D&E. The dual prohibitions of the Act, both of which are necessary for criminal liability, correspond with the steps generally undertaken during this type of procedure. First, a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation. See 18 U. S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). Second, the doctor proceeds to pierce the fetal skull with scissors or crush it with forceps. This step satisfies the overt-act requirement because it kills the fetus and is distinct from delivery. See §1531(b)(1)(B). The Act’s intent requirements, however, limit its reach to those physicians who carry out the intact D&E after intending to undertake both steps at the outset. The Act excludes most D&Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability. A doctor performing a standard D&E procedure can often “tak[e] about 10–15 ‘passes’ through the uterus to remove the entire fetus.” Planned Parenthood, 320 F. Supp. 2d, at 962. Removing the fetus in this manner does not violate the Act because the doctor will not have delivered the living fetus to one of the anatomical landmarks or committed an additional overt act that kills the fetus after partial delivery. §1531(b)(1) (2000 ed., Supp. IV). A comparison of the Act with the Nebraska statute struck down in Stenberg confirms this point. The statute in Stenberg prohibited “ ‘deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.’ ” 530 U. S., at 922 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). The Court concluded that this statute encompassed D&E because “D&E will often involve a physician pulling a ‘substantial portion’ of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus.” 530 U. S., at 939. The Court also rejected the limiting interpretation urged by Nebraska’s Attorney General that the statute’s reference to a “procedure” that “ ‘kill[s] the unborn child’ ” was to a distinct procedure, not to the abortion procedure as a whole. Id., at 943. Congress, it is apparent, responded to these concerns because the Act departs in material ways from the statute in Stenberg. It adopts the phrase “delivers a living fetus,” §1531(b)(1)(A) (2000 ed., Supp. IV), instead of “ ‘delivering . . . a living unborn child, or a substantial portion thereof,’ ” 530 U. S., at 938 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). The Act’s language, unlike the statute in Stenberg, expresses the usual meaning of “deliver” when used in connection with “fetus,” namely, extraction of an entire fetus rather than removal of fetal pieces. See Stedman’s Medical Dictionary 470 (27th ed. 2000) (defining deliver as “[t]o assist a woman in childbirth” and “[t]o extract from an enclosed place, as the fetus from the womb, an object or foreign body”); see also I. Dox, B. Melloni, G. Eisner, & J. Melloni, The HarperCollins Illustrated Medical Dictionary 160 (4th ed. 2001); Merriam Webster’s Collegiate Dictionary 306 (10th ed. 1997). The Act thus displaces the interpretation of “delivering” dictated by the Nebraska statute’s reference to a “substantial portion” of the fetus. Stenberg, supra, at 944 (indicating that the Nebraska “statute itself specifies that it applies both to delivering ‘an intact unborn child’ or ‘a substantial portion thereof’ ”). In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result. See, e.g., 2A N. Singer, Sutherland on Statutes and Statutory Construction §47:28 (rev. 6th ed. 2000). Here, unlike in Stenberg, the language does not require a departure from the ordinary meaning. D&E does not involve the delivery of a fetus because it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix. The identification of specific anatomical landmarks to which the fetus must be partially delivered also differentiates the Act from the statute at issue in Stenberg. §1531(b)(1)(A) (2000 ed., Supp. IV). The Court in Stenberg interpreted “ ‘substantial portion’ ” of the fetus to include an arm or a leg. 530 U. S., at 939. The Act’s anatomical landmarks, by contrast, clarify that the removal of a small portion of the fetus is not prohibited. The landmarks also require the fetus to be delivered so that it is partially “outside the body of the mother.” §1531(b)(1)(A). To come within the ambit of the Nebraska statute, on the other hand, a substantial portion of the fetus only had to be delivered into the vagina; no part of the fetus had to be outside the body of the mother before a doctor could face criminal sanctions. Id., at 938–939. By adding an overt-act requirement Congress sought further to meet the Court’s objections to the state statute considered in Stenberg. Compare 18 U. S. C. §1531(b)(1) (2000 ed., Supp. IV) with Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999). The Act makes the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced) by differentiating between the overall partial-birth abortion and the distinct overt act that kills the fetus. See Stenberg, 530 U. S., at 943–944. The fatal overt act must occur after delivery to an anatomical landmark, and it must be something “other than [the] completion of delivery.” §1531(b)(1)(B). This distinction matters because, unlike intact D&E, standard D&E does not involve a delivery followed by a fatal act. The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D&E procedure. “ ‘[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ ” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (quoting Hooper v. California, 155 U. S. 648, 657 (1895)). It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic “ ‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’ ” Stenberg, supra, at 977 (Kennedy, J., dissenting) (quoting Thornburgh, 476 U. S., at 829 (O’Connor, J., dissenting)). Casey put this novel statutory approach to rest. Stenberg, supra, at 977 (Kennedy, J., dissenting). Stenberg need not be interpreted to have revived it. We read that decision instead to stand for the uncontroversial proposition that the canon of constitutional avoidance does not apply if a statute is not “genuinely susceptible to two constructions.” Almendarez-Torres v. United States, 523 U. S. 224, 238 (1998); see also Clark v. Martinez, 543 U. S. 371, 385 (2005). In Stenberg the Court found the statute covered D&E. 530 U. S., at 938–945. Here, by contrast, interpreting the Act so that it does not prohibit standard D&E is the most reasonable reading and understanding of its terms. 2 Contrary arguments by the respondents are unavailing. Respondents look to situations that might arise during D&E, situations not examined in Stenberg. They contend—relying on the testimony of numerous abortion doctors—that D&E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion procedure. It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D&E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner. Brief for Respondent Planned Parenthood et al. in No. 05–1382, p. 38. This reasoning, however, does not take account of the Act’s intent requirements, which preclude liability from attaching to an accidental intact D&E. If a doctor’s intent at the outset is to perform a D&E in which the fetus would not be delivered to either of the Act’s anatomical landmarks, but the fetus nonetheless is delivered past one of those points, the requisite and prohibited scienter is not present. 18 U. S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). When a doctor in that situation completes an abortion by performing an intact D&E, the doctor does not violate the Act. It is true that intent to cause a result may sometimes be inferred if a person “knows that that result is practically certain to follow from his conduct.” 1 LaFave §5.2(a), at 341. Yet abortion doctors intending at the outset to perform a standard D&E procedure will not know that a prohibited abortion “is practically certain to follow from” their conduct. Ibid. A fetus is only delivered largely intact in a small fraction of the overall number of D&E abortions. Planned Parenthood, 320 F. Supp. 2d, at 965. The evidence also supports a legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance. Doctors, for example, may remove the fetus in a manner that will increase the chances of an intact delivery. See, e.g., App. in No. 05–1382, at 74, 452. And intact D&E is usually described as involving some manner of serial dilation. See, e.g., Dilation and Extraction 110. Doctors who do not seek to obtain this serial dilation perform an intact D&E on far fewer occasions. See, e.g., Carhart, 331 F. Supp. 2d, at 857–858 (“In order for intact removal to occur on a regular basis, Dr. Fitzhugh would have to dilate his patients with a second round of laminaria”). This evidence belies any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E. Many doctors who testified on behalf of respondents, and who objected to the Act, do not perform an intact D&E by accident. On the contrary, they begin every D&E abortion with the objective of removing the fetus as intact as possible. See, e.g., id., at 869 (“Since Dr. Chasen believes that the intact D & E is safer than the dismemberment D & E, Dr. Chasen’s goal is to perform an intact D & E every time”); see also id., at 873, 886. This does not prove, as respondents suggest, that every D&E might violate the Act and that the Act therefore imposes an undue burden. It demonstrates only that those doctors who intend to perform a D&E that would involve delivery of a living fetus to one of the Act’s anatomical landmarks must adjust their conduct to the law by not attempting to deliver the fetus to either of those points. Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions. The Act, then, cannot be held invalid on its face on these grounds. IV Under the principles accepted as controlling here, the Act, as we have interpreted it, would be unconstitutional “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U. S., at 878 (plurality opinion). The abortions affected by the Act’s regulations take place both previability and postviability; so the quoted language and the undue burden analysis it relies upon are applicable. The question is whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to late-term, but previability, abortions. The Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity. A The Act’s purposes are set forth in recitals preceding its operative provisions. A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process. Congress stated as follows: “Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.” Congressional Findings (14)(N), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. The Act expresses respect for the dignity of human life. Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the Act explain: “Partial-birth abortion … confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.” Congressional Findings (14)(J), ibid. There can be no doubt the government “has an interest in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U. S. 702, 731 (1997); see also Barsky v. Board of Regents of Univ. of N. Y., 347 U. S. 442, 451 (1954) (indicating the State has “legitimate concern for maintaining high standards of professional conduct” in the practice of medicine). Under our precedents it is clear the State has a significant role to play in regulating the medical profession. Casey reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court’s precedents after Roe had “undervalue[d] the State’s interest in potential life.” 505 U. S., at 873 (plurality opinion); see also id., at 871. The plurality opinion indicated “[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id., at 874. This was not an idle assertion. The three premises of Casey must coexist. See id., at 846 (opinion of the Court). The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. The Act’s ban on abortions that involve partial delivery of a living fetus furthers the Government’s objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a “disturbing similarity to the killing of a newborn infant,” Congressional Findings (14)(L), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with “draw[ing] a bright line that clearly distinguishes abortion and infanticide.” Congressional Findings (14)(G), ibid. The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State’s “fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.” 521 U. S., at 732–735, and n. 23. Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid. In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479. It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Casey, supra, at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning”). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. It is objected that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the Act’s anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, “undermines the public’s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.” Congressional Findings (14)(K), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. There would be a flaw in this Court’s logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad and then to say it is irrational to ban only intact D&E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was “to place a substantial obstacle in the path of a woman seeking an abortion.” 505 U. S., at 878 (plurality opinion). B The Act’s furtherance of legitimate government interests bears upon, but does not resolve, the next question: whether the Act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where “ ‘necessary, in appropriate medical judgment, for [the] preservation of the … health of the mother.’ ” Ayotte, 546 U. S., at 327–328 (quoting Casey, supra, at 879 (plurality opinion)). The prohibition in the Act would be unconstitutional, under precedents we here assume to be controlling, if it “subject[ed] [women] to significant health risks.” Ayotte, supra, at 328; see also Casey, supra, at 880 (opinion of the Court). In Ayotte the parties agreed a health exception to the challenged parental-involvement statute was necessary “to avert serious and often irreversible damage to [a pregnant minor’s] health.” 546 U. S., at 328. Here, by contrast, whether the Act creates significant health risks for women has been a contested factual question. The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their position. Respondents presented evidence that intact D&E may be the safest method of abortion, for reasons similar to those adduced in Stenberg. See 530 U. S., at 932. Abortion doctors testified, for example, that intact D&E decreases the risk of cervical laceration or uterine perforation because it requires fewer passes into the uterus with surgical instruments and does not require the removal of bony fragments of the dismembered fetus, fragments that may be sharp. Respondents also presented evidence that intact D&E was safer both because it reduces the risks that fetal parts will remain in the uterus and because it takes less time to complete. Respondents, in addition, proffered evidence that intact D&E was safer for women with certain medical conditions or women with fetuses that had certain anomalies. See, e.g., Carhart, 331 F. Supp. 2d, at 923–929; Nat. Abortion Federation, supra, at 470–474; Planned Parenthood, 320 F. Supp. 2d, at 982–983. These contentions were contradicted by other doctors who testified in the District Courts and before Congress. They concluded that the alleged health advantages were based on speculation without scientific studies to support them. They considered D&E always to be a safe alternative. See, e.g., Carhart, supra, at 930–940; Nat. Abortion Federation, 330 F. Supp. 2d, at 470–474; Planned Parenthood, 320 F. Supp. 2d, at 983. There is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women. See, e.g., id., at 1033 (“[T]here continues to be a division of opinion among highly qualified experts regarding the necessity or safety of intact D & E”); see also Nat. Abortion Federation, supra, at 482. The three District Courts that considered the Act’s constitutionality appeared to be in some disagreement on this central factual question. The District Court for the District of Nebraska concluded “the banned procedure is, sometimes, the safest abortion procedure to preserve the health of women.” Carhart, supra, at 1017. The District Court for the Northern District of California reached a similar conclusion. Planned Parenthood, supra, at 1002 (finding intact D&E was “under certain circumstances … significantly safer than D & E by disarticulation”). The District Court for the Southern District of New York was more skeptical of the purported health benefits of intact D&E. It found the Attorney General’s “expert witnesses reasonably and effectively refuted [the plaintiffs’] proffered bases for the opinion that [intact D&E] has safety advantages over other second-trimester abortion procedures.” Nat. Abortion Federation, 330 F. Supp. 2d, at 479. In addition it did “not believe that many of [the plaintiffs’] purported reasons for why [intact D&E] is medically necessary [were] credible; rather [it found them to be] theoretical or false.” Id., at 480. The court nonetheless invalidated the Act because it determined “a significant body of medical opinion … holds that D & E has safety advantages over induction and that [intact D&E] has some safety advantages (however hypothetical and unsubstantiated by scientific evidence) over D & E for some women in some circumstances.” Ibid. The question becomes whether the Act can stand when this medical uncertainty persists. The Court’s precedents instruct that the Act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty. See Kansas v. Hendricks, 521 U. S. 346, 360, n. 3 (1997); Jones v. United States, 463 U. S. 354, 364–365, n. 13, 370 (1983); Lambert v. Yellowley, 272 U. S. 581, 597 (1926); Collins v. Texas, 223 U. S. 288, 297–298 (1912); Jacobson v. Massachusetts, 197 U. S. 11, 30–31 (1905); see also Stenberg, supra, at 969–972 (Kennedy, J., dissenting); Marshall v. United States, 414 U. S. 417, 427 (1974) (“When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad”). This traditional rule is consistent with Casey, which confirms the State’s interest in promoting respect for human life at all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. In Casey the controlling opinion held an informed-consent requirement in the abortion context was “no different from a requirement that a doctor give certain specific information about any medical procedure.” 505 U. S., at 884 (joint opinion). The opinion stated “the doctor-patient relation here is entitled to the same solicitude it receives in other contexts.” Ibid.; see also Webster v. Reproductive Health Services, 492 U. S. 490, 518–519 (1989) (plurality opinion) (criticizing Roe’s trimester framework because, inter alia, it “left this Court to serve as the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States” (internal quotation marks omitted)); Mazurek v. Armstrong, 520 U. S. 968, 973 (1997) (per curiam) (upholding a restriction on the performance of abortions to licensed physicians despite the respondents’ contention “all health evidence contradicts the claim that there is any health basis for the law” (internal quotation marks omitted)). Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. See Hendricks, supra, at 360, n. 3. The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden. The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E. One District Court found D&E to have extremely low rates of medical complications. Planned Parenthood, supra, at 1000. Another indicated D&E was “generally the safest method of abortion during the second trimester.” Carhart, 331 F. Supp. 2d, at 1031; see also Nat. Abortion Federation, supra, at 467–468 (explaining that “[e]xperts testifying for both sides” agreed D&E was safe). In addition the Act’s prohibition only applies to the delivery of “a living fetus.” 18 U. S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure. The instant cases, then, are different from Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 77–79 (1976), in which the Court invalidated a ban on saline amniocentesis, the then-dominant second-trimester abortion method. The Court found the ban in Danforth to be “an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks.” Id., at 79. Here the Act allows, among other means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right. In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Brief for Petitioner in No. 05–380, at 23. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress’ findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See Crowell v. Benson, 285 U. S. 22, 60 (1932) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function”). As respondents have noted, and the District Courts recognized, some recitations in the Act are factually incorrect. See Nat. Abortion Federation, 330 F. Supp. 2d, at 482, 488–491. Whether or not accurate at the time, some of the important findings have been superseded. Two examples suffice. Congress determined no medical schools provide instruction on the prohibited procedure. Congressional Findings (14)(B), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. The testimony in the District Courts, however, demonstrated intact D&E is taught at medical schools. Nat. Abortion Federation, supra, at 490; Planned Parenthood, 320 F. Supp. 2d, at 1029. Congress also found there existed a medical consensus that the prohibited procedure is never medically necessary. Congressional Findings (1), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 767. The evidence presented in the District Courts contradicts that conclusion. See, e.g., Carhart, supra, at 1012–1015; Nat. Abortion Federation, supra, at 488–489; Planned Parenthood, supra, at 1025–1026. Uncritical deference to Congress’ factual findings in these cases is inappropriate. On the other hand, relying on the Court’s opinion in Stenberg, respondents contend that an abortion regulation must contain a health exception “if ‘substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health.’ ” Brief for Respondents in No. 05–380, p. 19 (quoting 530 U. S., at 938); see also Brief for Respondent Planned Parenthood et al. in No. 05–1382, at 12 (same). As illustrated by respondents’ arguments and the decisions of the Courts of Appeals, Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty. Carhart, 413 F. 3d, at 796; Planned Parenthood, 435 F. 3d, at 1173; see also Nat. Abortion Federation, 437 F. 3d, at 296 (Walker, C. J., concurring) (explaining the standard under Stenberg “is a virtually insurmountable evidentiary hurdle”). A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives. V The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. Tr. of Oral Arg. in No. 05–380, pp. 21–23. This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack. The latitude given facial challenges in the First Amendment context is inapplicable here. Broad challenges of this type impose “a heavy burden” upon the parties maintaining the suit. Rust v. Sullivan, 500 U. S. 173, 183 (1991). What that burden consists of in the specific context of abortion statutes has been a subject of some question. Compare Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (“[B]ecause appellees are making a facial challenge to a statute, they must show that no set of circumstances exists under which the Act would be valid” (internal quotation marks omitted)), with Casey, 505 U. S., at 895 (opinion of the Court) (indicating a spousal-notification statute would impose an undue burden “in a large fraction of the cases in which [it] is relevant” and holding the statutory provision facially invalid). See also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U. S. 1174 (1996). We need not resolve that debate. As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. “[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” United States v. Raines, 362 U. S. 17, 21 (1960) (internal quotation marks omitted). For this reason, “[a]s-applied challenges are the basic building blocks of constitutional adjudication.” Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000). The Act is open to a proper as-applied challenge in a discrete case. Cf. Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. 410, 411–412 (2006) (per curiam). No as-applied challenge need be brought if the prohibition in the Act threatens a woman’s life because the Act already contains a life exception. 18 U. S. C. §1531(a) (2000 ed., Supp. IV). * * * Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed. It is so ordered.
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549.US.183
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Respondent, a permanent resident alien, was convicted of violating Cal. Veh. Code Ann. §10851(a), under which “[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner … , or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense.” (Emphasis added.) The Federal Government then sought to remove respondent from the United States as an alien convicted of “a theft offense … for which the term of imprisonment [is] at least one year,” 8 U. S. C. §1101(a)(43)(G); §1227(a)(2)(A). The Government claimed that the California conviction qualified as such a “theft offense” under the framework set forth in Taylor v. United States, 495 U. S. 575. In Taylor, the Court considered whether a prior conviction for violating a state statute criminalizing certain burglary-like behavior fell within the term “burglary” for sentence-enhancement purposes under 18 U. S. C. §924(e). This Court held that Congress meant that term to refer to “burglary” in “the generic sense in which the term is now used in the criminal codes of most States,” id., at 598; and that a sentencing court seeking to determine whether a particular prior conviction was for generic burglary should normally look to the state statute defining the crime of conviction, not to the facts of the particular prior case, id., at 599–600; but that where state law defines burglary broadly to include crimes falling outside generic “burglary,” the sentencer should “go beyond the mere fact of conviction” and examine, e.g., the charging document and jury instructions to determine whether the earlier “jury was actually required to find all the elements of generic burglary,” id., at 602. The Federal Immigration Judge and the Bureau of Immigration Appeals (BIA) found respondent removable, but the Ninth Circuit, summarily remanded in light of its earlier Penuliar decision holding that “aiding and abetting” a theft is not itself a crime under the generic definition of theft. Held: The term “theft offense” in 8 U. S. C. §1101(a)(43)(G) includes the crime of “aiding and abetting” a theft offense. Pp. 5–11. (a) One who aids or abets a theft, like a principal who actually participates, commits a crime that falls within the scope of the generic theft definition accepted by the BIA and the Ninth and other Circuits: the “taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Penuliar v. Gonzales, 435 F. 3d 961, 969. Since, as the record shows, state and federal criminal law now uniformly treats principals and aiders and abettors alike, “the generic sense in which” the term “theft” “is now used in the criminal codes of most States,” Taylor, supra, at 598, covers such “aiders and abettors” as well as principals. And the criminal activities of these aiders and abettors of a generic theft thus fall within the scope of the term “theft” in the federal statute. Pp. 5–6. (b) The Court rejects respondent’s argument that Cal. Veh. Code §10851, through the California courts’ application of a “natural and probable consequences” doctrine, creates a subspecies of the crime falling outside the generic “theft” definition. The fact that, under California law, an aider and abettor is criminally responsible not only for the crime he intends, but also for any crime that naturally and probably results from his intended crime, does not in itself show that the state statute covers a nongeneric theft crime. Relatively few jurisdictions have expressly rejected the “natural and probable consequences” doctrine, and many States and the Federal Government apply some form or variation of that doctrine or permit jury inferences of intent in circumstances similar to those in which California has applied the doctrine. To succeed, respondent must show something special about California’s version of the doctrine. His attempt to show that, unlike most other States, California makes a defendant criminally liable for conduct he did not intend, not even as a known or almost certain byproduct of his intentional acts, fails because the California cases respondent cites do not show that California’s law is applied in such a way that is somehow broader in scope than other States’ laws. Moreover, to find that state law creates a crime outside the generic definition of a listed crime in a federal statute requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct falling outside the generic definition. To make that showing, an offender must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues. Respondent makes no such showing. Pp. 6–10. (c) Respondent’s additional claims—that §10851 (1) holds liable accessories after the fact, who need not be shown to have committed a theft, and (2) applies to joyriding, which falls outside the generic “theft” definition—are not considered here because they do not fall within the terms of the question presented, the lower court did not consider them, and this Court declines to reach them in the first instance. Pp. 10–11. 176 Fed. Appx. 820, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined, and in which Stevens, J., joined, as to Parts I, II, and III–B. Stevens, J., filed an opinion concurring in part and dissenting in part.
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Immigration law provides for removal from the United States of an alien convicted of “a theft offense (including receipt of stolen property) … for which the term of imprisonment [is] at least one year.” 8 U. S. C. §1101(a)(43)(G) (emphasis added); §1227(a)(2)(A). The question here is whether the term “theft offense” in this federal statute includes the crime of “aiding and abetting” a theft offense. We hold that it does. And we vacate a Ninth Circuit determination to the contrary. I The Immigration and Nationality Act, 66 Stat. 163, 8 U. S. C. §1101 et seq., lists a set of offenses, conviction for any one of which subjects certain aliens to removal from the United States, §1227(a). In determining whether a conviction (say, a conviction for violating a state criminal law that forbids the taking of property without permission) falls within the scope of a listed offense (e.g., “theft offense”), the lower courts uniformly have applied the approach this Court set forth in Taylor v. United States, 495 U. S. 575 (1990). E.g., Soliman v. Gonzales, 419 F. 3d 276, 284 (CA4 2005); Abimbola v. Ashcroft, 378 F. 3d 173, 176–177 (CA2 2004); Huerta-Guevara v. Ashcroft, 321 F. 3d 883, 886–888 (CA9 2003); Hernandez-Mancilla v. INS, 246 F. 3d 1002, 1008–1009 (CA7 2001). Taylor concerned offenses listed in the federal Armed Career Criminal Act, 18 U. S. C. §924(e) (2000 ed. and Supp. IV). That Act mandates a lengthy prison sentence for offenders with previous convictions for, e.g., a “violent felony”; and the Act sets forth certain specific crimes, e.g., “burglary,” included in this category. The Court, in Taylor, considered whether a conviction for violating a state statute criminalizing certain burglary-like behavior fell within the listed federal term “burglary.” 495 U. S., at 589, 598. The Court held that Congress meant its listed term “burglary” to refer to a specific crime, i.e., “ ‘burglary’ ” in “the generic sense in which the term is now used in the criminal codes of most States.” Id., at 598 (emphasis added). The Court also held that a state conviction qualifies as a burglary conviction, “regardless of” the “exact [state] definition or label” as long as it has the “basic elements” of “generic” burglary, namely “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id., at 599. The Court added that, when a sentencing court seeks to determine whether a particular prior conviction was for a generic burglary offense, it should normally look not to the facts of the particular prior case, but rather to the state statute defining the crime of conviction. Id., at 599–600. The Court further noted that a “few States’ burglary statutes,” “define burglary more broadly” to include both a (generically defined) listed crime and also one or more nonlisted crimes. Id., at 599. For example, Massachusetts defines “burglary” as including not only breaking into “ ‘a building’ ” but also breaking into a “vehicle” (which falls outside the generic definition of “burglary,” for a car is not a “ ‘building or structure’ ”). See Shepard v. United States, 544 U. S. 13, 16, 17 (2005); see also Taylor, 495 U. S., at 599 (discussing Missouri burglary statutes). In such cases the Court’s “categorical approach” permits the sentencing court “to go beyond the mere fact of conviction” in order to determine whether the earlier “jury was actually required to find all the elements of generic burglary.” Id., at 602; see also Conteh v. Gonzales, 461 F. 3d 45, 54 (CA1 2006) (observing that some courts refer to this step of the Taylor inquiry as a “modified categorical approach”). “For example,” the sentencing court might examine “the indictment or information and jury instructions” in the earlier case. 495 U. S., at 602. In Shepard, we added that, in a nonjury case, the sentencing court might examine not only the “charging document” but also “the terms of a plea agreement,” the “transcript of colloquy between judge and defendant,” or “some comparable judicial record” of information about the “factual basis for the plea.” 544 U. S., at 26. II The case before us concerns the application of the framework just set forth to Luis Duenas-Alvarez, the respondent here, a permanent resident alien of the United States. In 2002, Duenas-Alvarez was convicted of violating Cal. Veh. Code Ann. §10851(a) (West 2000). That section states: “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense.” (Emphasis added.) After Duenas-Alvarez was convicted, the Federal Government, claiming that the conviction was for a generic theft offense, began removal proceedings. A Federal Immigration Judge, agreeing with the Government that the California offense is “a theft offense … for which the term of imprisonment [is] at least one year,” found Duenas-Alvarez removable. 8 U. S. C. §1101(a)(43)(G) (footnote omitted); §1227(a)(2)(A). The Bureau of Immigration Appeals (BIA) affirmed. Duenas-Alvarez sought review of the BIA’s decision in the Court of Appeals for the Ninth Circuit. While respondent’s petition for court review was pending, the Ninth Circuit, in Penuliar v. Ashcroft, 395 F. 3d 1037 (2005), held that the relevant California Vehicle Code provision, §10851(a), sweeps more broadly than generic theft. See id., at 1044–1045. In particular, the court said that generic theft has as an element the taking or control of others’ property. But, the court added, the California statutory phrase “ ‘[who] is a party or an accessory … or an accomplice’ ” would permit conviction “for aiding and abetting a theft.” Id., at 1044 (emphasis deleted). And the court believed that one might “aid” or “abet” a theft without taking or controlling property. Id., at 1044–1045 (citing Martinez-Perez v. Ashcroft, 393 F. 3d 1018 (CA9 2004), withdrawn and amended, 417 F. 3d 1022 (2005)). Hence, in the Court of Appeals’ view, the provision must cover some generically defined “theft” crimes and also some other crimes (aiding and abetting crimes) that, because they are not generically defined “theft” crimes, fall outside the scope of the term “theft” in the immigration statute. 395 F. 3d, at 1044–1045. The Ninth Circuit subsequently heard Duenas-Alvarez’s petition for review and summarily remanded the case to the agency for further proceedings in light of Penuliar. 176 Fed. Appx. 820 (2006). We granted the Government’s petition for certiorari in order to consider the legal validity of the Ninth Circuit’s holding set forth in Penuliar and applied here, namely the holding that “aiding and abetting” a theft is not itself a crime that falls within the generic definition of theft. We conclude that the Ninth Circuit erred. III The Ninth Circuit, like other Circuits and the BIA, accepted as a generic definition of theft, the “taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” Penuliar v. Gonzales, 435 F. 3d 961, 969 (2006) (internal quotation marks omitted). See Abimbola, 378 F. 3d, at 176 (analyzing the BIA’s definition and citing cases from three other Circuits, including the Ninth Circuit, approving that definition). The question before us is whether one who aids or abets a theft falls, like a principal, within the scope of this generic definition. We conclude that he does. The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. See Standefer v. United States, 447 U. S. 10, 15 (1980). In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories. Id., at 16–19; Nye & Nissen v. United States, 336 U. S. 613, 618 (1949). Indeed, every jurisdiction—all States and the Federal Government—has “expressly abrogated the distinction” among principals and aiders and abettors who fall into the second and third categories. 2 W. LaFave, Substantive Criminal Law §13.1(e), p. 333 (2d ed. 2003) (LaFave). The Solicitor General has presented us with a comprehensive account of the law of all States and federal jurisdictions as well. And we have verified that these jurisdictions treat similarly principals and aiders and abettors who fall into the second or third common-law category. See Appendix A, infra. Since criminal law now uniformly treats those who fall into the first three categories alike, “the generic sense in which” the term “theft” “is now used in the criminal codes of most States,” Taylor, 495 U. S., at 598, covers such “aiders and abettors” as well as principals. And the criminal activities of these aiders and abettors of a generic theft must themselves fall within the scope of the term “theft” in the federal statute. A Duenas-Alvarez does not defend the Ninth Circuit’s position. He agrees with the Government that generically speaking the law treats aiders and abettors during and before the crime the same way it treats principals; and that the immigration statute must then treat them similarly as well. Instead, Duenas-Alvarez argues that the California Vehicle Code provision in other ways reaches beyond generic theft to cover certain nongeneric crimes. Duenas-Alvarez points out that California defines “aiding and abetting” such that an aider and abettor is criminally responsible not only for the crime he intends, but also for any crime that “naturally and probably” results from his intended crime. People v. Durham, 70 Cal. 2d 171, 181, 449 P. 2d 198, 204 (1969) (“ ‘aider and abettor … liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged’ ” (quoting People v. Villa, 156 Cal. App. 2d 128, 134 (1957); emphasis deleted). This fact alone does not show that the statute covers a nongeneric theft crime, for relatively few jurisdictions (only 10 in Duenas-Alvarez’s own view) have expressly rejected the “natural and probable consequences” doctrine. See Brief for Respondent 21–22; Appendix B, infra. Moreover, many States and the Federal Government apply some form or variation of that doctrine, or permit jury inferences of intent in circumstances similar to those in which California has applied the doctrine, as explained below. See Appendix C, infra. To succeed, Duenas-Alvarez must show something special about California’s version of the doctrine—for example, that California in applying it criminalizes conduct that most other States would not consider “theft.” Duenas-Alvarez attempts to make just such a showing. In particular, he says that California’s doctrine, unlike that of most other States, makes a defendant criminally liable for conduct that the defendant did not intend, not even as a known or almost certain byproduct of the defendant’s intentional acts. See 1 LaFave §5.2(a), at 341 (person intends that which he knows “is practically certain to follow from his conduct”). At oral argument, Duenas-Alvarez’s counsel suggested that California’s doctrine, for example, might hold an individual who wrongly bought liquor for an underage drinker criminally responsible for that young drinker’s later (unforeseen) reckless driving. See Tr. of Oral Arg. 44. And Duenas-Alvarez refers to several California cases in order to prove his point. See Brief for Respondent 19. We have reviewed those cases, however, and we cannot agree that they show that California’s law is somehow special. In the first case, People v. Nguyen, 21 Cal. App. 4th 518, 26 Cal. Rptr. 2d 323 (1993), the Third Appellate District in California upheld the jury conviction of individuals who had aided several robberies at houses of prostitution, for aiding and abetting a sexual assault used by one of the individuals to convince a proprietor, by frightening her, to give up property. Id., at 528, 533–534, 26 Cal. Rptr. 2d, at 329, 333. The court, in upholding the verdict, wrote that “knowledge of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime.” Id., at 530, 26 Cal. Rptr. 2d, at 330 (emphasis added). The court added that “[w]hile the defendants participated in the criminal endeavor the foreseeability of sexual assault went from possible or likely to certain, yet defendants continued to lend their aid and assistance to the endeavor.” Id., at 534, 26 Cal. Rptr. 2d, at 333 (emphasis added). The court said that the jury could find that the defendants’ “continuing participation in the criminal endeavor aided the perpetrators by providing the control and security they needed to tarry long enough to commit the sexual offense, by helping to convince the victim that resistance would be useless, and by dissuading the victim’s employee from any notion she may have formed of going to the victim’s assistance.” And the court concluded that: “Under these circumstances it will not do for defendants to assert that they were concerned only with robbery and bear no responsibility for the sexual assault.” Id., at 533–534, 26 Cal. Rptr. 2d, at 333. People v. Simpson, 66 Cal. App. 2d 319 (1944), affirmed a kidnaping and robbery conviction on an aiding and abetting theory. Id., at 322. Although the defendant argued to the appeals court that she and her compatriots had not planned to kidnap the robbery victim, the record showed that she had brought the gun used to intimidate the victim while he was tied up and placed in a car, in which she and her corobbers rode with the victim to another location while they robbed him. Id., at 322–323. As in Nguyen, the Court, noting that kidnaping was the means by which the robbery was committed, found that the defendant had the requisite “motive,” or intent to commit the kidnaping. 66 Cal. App. 2d, at 326. People v. Montes, 74 Cal. App. 4th 1050, 88 Cal. Rptr. 2d 482 (1999), affirmed an attempted murder conviction where a confederate of the defendant shot the victim after the defendant committed armed assault, simple assault, and breach of the peace. Id., at 1055, 88 Cal. Rptr. 2d, at 485. The court found that the conduct for which the appellant was charged with assault and breach of the peace was a “confrontation … punctuated by threats and weaponry” “in the context of an ongoing rivalry between … two gangs [that] acted violently toward each other.” Ibid. The court reasoned that the escalating violence, resulting in someone being shot, was a foreseeable consequence of the defendant’s intended act of participating in the gang confrontation. Ibid. Although the court in Montes applied a more expansive concept of “motive” or “intent” than did the courts in Nguyen and Simpson, we cannot say that those concepts as used in any of these cases extend significantly beyond the concept as set forth in the cases of other States. See Appendix C, infra. Moreover, in our view, to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues. Because Duenas-Alvarez makes no such showing here, we cannot find that California’s statute, through the California courts’ application of a “natural and probable consequences” doctrine, creates a subspecies of the Vehicle Code section crime that falls outside the generic definition of “theft.” B Duenas-Alvarez makes two additional claims. First, he argues that §10851 holds liable accessories after the fact; and to prove that an individual was an accessory after the fact does not require the government to show that the individual committed a theft. Second, Duenas-Alvarez argues that §10851 applies, not only to auto theft, but also to joyriding, which he argues involves so limited a deprivation of the use of a car that it falls outside the generic “theft” definition. See Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y. 303, 146 N. E. 432 (1925) (Cardozo, J.) (citing cases for proposition that a very temporary use is not theft). We shall not consider these claims. The question that we agreed to decide is whether “ ‘theft offense’ ” in the federal statute “includes aiding and abetting the commission of the offense.” See Brief for Petitioner I. Context makes clear that “aiding and abetting” in this question referred to the use of that term in Penuliar, i.e., to the second and third common-law categories (principal in the second degree, accessory before the fact), see supra, at 5, see also Brief for Petitioner 13, and not to “accessory after the fact.” Thus neither this claim nor the “joyriding” claim falls within the terms of the question presented. Regardless, the lower court did not consider the claims, and we decline to reach them in the first instance. See National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 469–470 (1999); Roberts v. Galen of Va., Inc., 525 U. S. 249, 253–254 (1999) (per curiam); United States v. Bestfoods, 524 U. S. 51, 72–73 (1998). For these reasons we vacate the Ninth Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT A Ala. Code §§13A–2–20, 13A–2–23 (2006); Alaska Stat. §§11.16.100, 11.16.110 (2004); Ariz. Rev. Stat. Ann. §§13–301, 13–302, 13–303(A) (West 2001); Ark. Code Ann. §§5–2–402, 5–2–403(a) (2006); Colo. Rev. Stat. Ann. §§18–1–601, 18–1–603 (2006); Conn. Gen. Stat. §53a–8(a) (2005); Del. Code Ann., Tit. 11, §271 (1995); D. C. Code §22–1805 (2001); Fla. Stat. §777.011 (2006); Ga. Code Ann. §16–2–20 (2003); Haw. Rev. Stat. §§702–221, 702–222 (1993); Idaho Code §19–1430 (Lexis 2004); Ill. Comp. Stat., ch. 720, §§5/5–1, 5/5–2 (West 2004); Ind. Code §35–41–2–4 (West 2004); Iowa Code §703.1 (2005); Kan. Stat. Ann. §21–3205(1) (1995); Ky. Rev. Stat. Ann. §502.020(1) (West 2006); La. Stat. Ann. §14:24 (West 1997); Me. Rev. Stat. Ann., Tit. 17–A, §57(1) (2006); Md. Crim. Proc. Code Ann. §4–204(b) (Lexis Supp. 2006); Mass. Gen. Laws, ch. 274, §2 (West 2005); Mich. Comp. Laws Ann. §767.39 (West 2000); Minn. Stat. §609.05, subdiv. 1 (2004); Miss. Code Ann. §97–1–3 (2006); Mo. Rev. Stat. §§562.036, 562.041(1) (1999); Mont. Code Ann. §§45–2–301, 45–2–302 (2005); Neb. Rev. Stat. §28–206 (1995); Nev. Rev. Stat. §195.020 (2003); N. H. Rev. Stat. Ann. §626:8 (Supp. 2006); N. J. Stat. Ann. §2C:2–6 (West 2005); N. M. Stat. Ann. §30–1–13 (2004); N. Y. Penal Law Ann. §20.00 (West 2004); N. C. Gen. Stat. Ann. §14–5.2 (2005); N. D. Cent. Code Ann. §12.1–03–01(1) (Lexis 1997); Ohio Rev. Code Ann. §§2923.03(A), (F) (Lexis 2006); Okla. Stat., Tit. 21, §172 (West 2001); Ore. Rev. Stat. §§161.150, 161.155 (2003); 18 Pa. Cons. Stat. §306 (2002); R. I. Gen. Laws §11–1–3 (2002); S. C. Code Ann. §16–1–40 (2003); S. D. Codified Laws §§22–3–3, 22–3–3.1 (1998); Tenn. Code Ann. §§39–11–401(a), 39–11–402 (2006); Tex. Penal Code Ann. §§7.01, 7.02(a) (West 2003); Utah Code Ann. §76–2–202 (Lexis 2003); Vt. Stat. Ann., Tit. 13, §§3–4 (1998); Va. Code Ann. §18.2–18 (Lexis 2004); Wash. Rev. Code §9A.08.020 (2006); W. Va. Code Ann. §61–11–6 (Lexis 2005); Wis. Stat. §939.05 (2005); Wyo. Stat. Ann. §6–1–201 (2005). B Alaska Stat. §11.16.110; Riley v. State, 60 P. 3d 204, 214, 219–221 (Alaska App. 2002); Tarnef v. State, 512 P. 2d 923, 928 (Alaska 1973); State v. Phillips, 202 Ariz. 427, 435–437, 46 P. 3d 1048, 1056–1058 (2002); State v. Wall, 212 Ariz. 1, 4–5, 126 P. 3d 148, 151–152 (2006) (en banc); Colo. Rev. Stat. Ann. §18–1–603; Bogdanov v. People, 941 P. 2d 247, 250–252, and n. 8 (en banc), as amended by 955 P. 2d 997 (Colo. 1997) (en banc), disapproved of on other grounds by Griego v. People, 19 P. 3d 1, 7–8 (Colo. 2001) (en banc); Wilson-Bey v. United States, 903 A. 2d 818, 821–822 (D. C. 2006) (en banc); Kitt v. United States, 904 A. 2d 348, 354–356 (D. C. 2006); Commonwealth v. Richards, 363 Mass. 299, 305–308, 293 N. E. 2d 854, 859–860 (1973); Commonwealth v. Daughtry, 417 Mass. 136, 137–139, 627 N. E. 2d 928, 930–931 (1994); Mont. Code Ann. §45–2–302; State ex rel. Keyes v. Montana 13th Jud. Dist. Ct., 288 Mont. 27, 32–35, 955 P. 2d 639, 642–643 (1998); Sharma v. State, 118 Nev. 648, 653–657, 56 P. 3d 868, 871–873 (2002); cf. Bolden v. State, 124 P. 3d 191, 200 (Nev. 2005); State v. Carrasco, 1997–NMSC–047, ¶¶5–9, 946 P. 2d 1075, 1079–1080; State v. Bacon, 163 Vt. 279, 286–292, 658 A. 2d 54, 60–63 (1995); State v. Pitts, 174 Vt. 21, 23–27, 800 A. 2d 481, 483–485 (2002). C See, e.g., 2 LaFave §13.3(b), at 361–362, nn. 27–29 (2d ed. 2003 and Supp. 2007) (identifying cases applying the doctrine in California, Delaware, Illinois, Indiana, Iowa, Kansas, Maine, Minnesota, Tennessee, and Wisconsin, as well as in other States where the continued viability of the doctrine is unclear); State v. Medeiros, 599 A. 2d 723, 726 (R. I. 1991) (aider and abettor intends natural and probable consequences of his acts). See also Beasley v. State, 360 So. 2d 1275, 1278 (Fla. App. 1978); Ga. Code Ann. §16–2–20; Jackson v. State, 278 Ga. 235, 235–237, 599 S. E. 2d 129, 131–132 (2004); Jordan v. State, 272 Ga. 395, 395–397, 530 S. E. 2d 192, 193–194 (2000); Crawford v. State, 210 Ga. App. 36, 36–37, 435 S. E. 2d 64, 65 (1993); State v. Ehrmantrout, 100 Idaho 202, 595 P. 2d 1097 (1979); State v. Meyers, 95–750, pp. 5–7 (La. App. 11/26/96), 683 So. 2d 1378, 1382; State v. Holmes, 388 So. 2d 722, 725–727 (La. 1980); People v. Robinson, 475 Mich. 1, 8–9, 715 N. W. 2d 44, 49 (2006); Welch v. State, 566 So. 2d 680, 684–685 (Miss. 1990); State v. Roberts, 709 S. W. 2d 857, 863, and n. 6 (Mo. 1986) (en banc); State v. Ferguson, 20 S. W. 3d 485, 497 (Mo. 2000) (en banc); State v. Logan, 645 S. W. 2d 60, 64–65 (Mo. App. 1982); State v. Leonor, 263 Neb. 86, 95–97, 638 N. W. 2d 798, 807 (2002); N. J. Stat. Ann. §2C:2–6 (West 2005); State v. Torres, 183 N. J. 554, 566–567, 874 A. 2d 1084, 1092 (2005); State v. Weeks, 107 N. J. 396, 401–406, 526 A. 2d 1077, 1080–1082 (1987); Ohio Rev. Code Ann. §2923.03; State v. Johnson, 93 Ohio St. 3d 240, 242–246, 754 N. E. 2d 796, 799–801 (2001); State v. Herring, 94 Ohio St. 3d 246, 248–251, 762 N. E. 2d 940, 947–948 (2002); Ore. Rev. Stat. §161.155; State v. Pine, 336 Ore. 194, 203–205, 206–208, and n. 6, 82 P. 3d 130, 135, 137, and n. 6 (2003); State v. Anlauf, 164 Ore. App. 672, 674–677, and n. 1, 995 P. 2d 547, 548–549, and n. 1 (2000); S. D. Codified Laws §22–3–3; State v. Tofani, 2006 SD 63, ¶¶ 31–52, 719 N. W. 2d 391, 400–405; Hudgins v. Moore, 337 S. C. 333, 339, n. 5, 524 S. E. 2d 105, 108, n. 5 (1999); State v. Richmond, 90 S. W. 3d 648, 654–656 (Tenn. 2002); Tex. Penal Code Ann. §7.02; Ex parte Thompson, 179 S. W. 3d 549, 552 (Tex. Crim. App. 2005); Gordon v. State, 640 S. W. 2d 743, 758 (Tex. App. 1982); Utah Code Ann. §76–2–202; State v. Alvarez, 872 P. 2d 450, 461 (Utah 1994); State v. Crick, 675 P. 2d 527, 534 (Utah 1983); State v. Rodoussakis, 204 W. Va. 58, 77, 511 S. E. 2d 469, 488 (1998); Jahnke v. State, 692 P. 2d 911, 921–922 (Wyo. 1984); Fales v. State, 908 P. 2d 404, 408 (Wyo. 1995); United States v. Edwards, 303 F. 3d 606, 637 (CA5 2002), cert. denied, 537 U. S. 1192 (2003); United States v. Walker, 99 F. 3d 439, 443 (CADC 1996); United States v. Miller, 22 F. 3d 1075, 1078–1079 (CA11 1994); United States v. Moore, 936 F. 2d 1508, 1527 (CA7), cert. denied, 502 U. S. 991 (1991); United States v. Graewe, 774 F. 2d 106, 108, n. 1 (CA6 1985), cert. denied, 474 U. S. 1068 and 1069 (1986); United States v. Barnett, 667 F. 2d 835, 841 (CA9 1982); United States v. DeLaMotte, 434 F. 2d 289, 293 (CA2 1970), cert. denied, 401 U. S. 921 (1971).
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550.US.124
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Following this Court’s Stenberg v. Carhart, 530 U. S. 914, decision that Nebraska’s “partial birth abortion” statute violated the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, and Roe v. Wade, 410 U. S. 113, Congress passed the Partial-Birth Abortion Ban Act of 2003 (Act) to proscribe a particular method of ending fetal life in the later stages of pregnancy. The Act does not regulate the most common abortion procedures used in the first trimester of pregnancy, when the vast majority of abortions take place. In the usual second-trimester procedure, “dilation and evacuation” (D&E), the doctor dilates the cervix and then inserts surgical instruments into the uterus and maneuvers them to grab the fetus and pull it back through the cervix and vagina. The fetus is usually ripped apart as it is removed, and the doctor may take 10 to 15 passes to remove it in its entirety. The procedure that prompted the federal Act and various state statutes, including Nebraska’s, is a variation of the standard D&E, and is herein referred to as “intact D&E.” The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes, pulling out its entire body instead of ripping it apart. In order to allow the head to pass through the cervix, the doctor typically pierces or crushes the skull. The Act responded to Stenberg in two ways. First, Congress found that unlike this Court in Stenberg, it was not required to accept the District Court’s factual findings, and that that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. Second, the Act’s language differs from that of the Nebraska statute struck down in Stenberg. Among other things, the Act prohibits “knowingly perform[ing] a partial-birth abortion … that is [not] necessary to save the life of a mother,” 18 U. S. C. §1531(a). It defines “partial-birth abortion,” §1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body … , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body … , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and “(B) performs the overt act, other than completion of delivery, that kills the fetus.” In No. 05–380, respondent abortion doctors challenged the Act’s constitutionality on its face, and the Federal District Court granted a permanent injunction prohibiting petitioner Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. The court found the Act unconstitutional because it (1) lacked an exception allowing the prohibited procedure where necessary for the mother’s health and (2) covered not merely intact D&E but also other D&Es. Affirming, the Eighth Circuit found that a lack of consensus existed in the medical community as to the banned procedure’s necessity, and thus Stenberg required legislatures to err on the side of protecting women’s health by including a health exception. In No. 05–1382, respondent abortion advocacy groups brought suit challenging the Act. The District Court enjoined the Attorney General from enforcing the Act, concluding it was unconstitutional on its face because it (1) unduly burdened a woman’s ability to choose a second-trimester abortion, (2) was too vague, and (3) lacked a health exception as required by Stenberg. The Ninth Circuit agreed and affirmed. Held: Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception. Pp. 14–39. 1. The Casey Court reaffirmed what it termed Roe’s three-part “essential holding”: First, a woman has the right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State. Second, the State has the power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering the woman’s life or health. And third, the State has legitimate interests from the pregnancy’s outset in protecting the health of the woman and the life of the fetus that may become a child. 505 U. S., at 846. Though all three are implicated here, it is the third that requires the most extended discussion. In deciding whether the Act furthers the Government’s legitimate interest in protecting fetal life, the Court assumes, inter alia, that an undue burden on the previability abortion right exists if a regulation’s “purpose or effect is to place a substantial obstacle in the [woman’s] path,” id., at 878, but that “[r]egulations which do no more than create a structural mechanism by which the State … may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose,” id., at 877. Casey struck a balance that was central to its holding, and the Court applies Casey’s standard here. A central premise of Casey’s joint opinion—that the government has a legitimate, substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments below. Pp. 14–16. 2. The Act, on its face, is not void for vagueness and does not impose an undue burden from any overbreadth. Pp. 16–26. (a) The Act’s text demonstrates that it regulates and proscribes performing the intact D&E procedure. First, since the doctor must “vaginally delive[r] a living fetus,” §1531(b)(1)(A), the Act does not restrict abortions involving delivery of an expired fetus or those not involving vaginal delivery, e.g., hysterotomy or hysterectomy. And it applies both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism within the womb, whether or not it is viable outside the womb. Second, because the Act requires the living fetus to be delivered to a specific anatomical landmark depending on the fetus’ presentation, ibid., an abortion not involving such partial delivery is permitted. Third, because the doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered fetus,” §1531(b)(1)(B), the “overt act” must be separate from delivery. It must also occur after delivery to an anatomical landmark, since killing “the partially delivered” fetus, when read in context, refers to a fetus that has been so delivered, ibid. Fourth, given the Act’s scienter requirements, delivery of a living fetus past an anatomical landmark by accident or inadvertence is not a crime because it is not “deliberat[e] and intentiona[l], §1531(b)(1)(A). Nor is such a delivery prohibited if the fetus [has not] been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” Ibid. Pp. 16–18. (b) The Act is not unconstitutionally vague on its face. It satisfies both requirements of the void-for-vagueness doctrine. First, it provides doctors “of ordinary intelligence a reasonable opportunity to know what is prohibited,” Grayned v. City of Rockford, 408 U. S. 104, 108, setting forth “relatively clear guidelines as to prohibited conduct” and providing “objective criteria” to evaluate whether a doctor has performed a prohibited procedure, Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513, 525–526. Second, it does not encourage arbitrary or discriminatory enforcement. Kolender v. Lawson, 461 U. S. 352, 357. Its anatomical landmarks “establish minimal guidelines to govern law enforcement,” Smith v. Goguen, 415 U. S. 566, 574, and its scienter requirements narrow the scope of its prohibition and limit prosecutorial discretion, see Kolender, supra, at 358. Respondents’ arbitrary enforcement arguments, furthermore, are somewhat speculative, since this is a preenforcement challenge. Pp. 18–20. (c) The Court rejects respondents’ argument that the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. Pp. 20–26. (i) The Act’s text discloses that it prohibits a doctor from intentionally performing an intact D&E. Its dual prohibitions correspond with the steps generally undertaken in this procedure: The doctor (1) delivers the fetus until its head lodges in the cervix, usually past the anatomical landmark for a breech presentation, see §1531(b)(1)(A), and (2) proceeds to the overt act of piercing or crushing the fetal skull after the partial delivery, see §1531(b)(1)(B). The Act’s scienter requirements limit its reach to those physicians who carry out the intact D&E, with the intent to undertake both steps at the outset. The Act excludes most D&Es in which the doctor intends to remove the fetus in pieces from the outset. This interpretation is confirmed by comparing the Act with the Nebraska statute in Stenberg. There, the Court concluded that the statute encompassed D&E, which “often involve[s] a physician pulling a ‘substantial portion’ of a still living fetus … , say, an arm or leg, into the vagina prior to the death of the fetus,” 530 U. S., at 939, and rejected the Nebraska Attorney General’s limiting interpretation that the statute’s reference to a “procedure” that “kill[s] the unborn child” was to a distinct procedure, not to the abortion procedure as a whole, id., at 943. It is apparent Congress responded to these concerns because the Act adopts the phrase “delivers a living fetus,” 18 U. S. C. §1531(b)(1)(A), instead of “ ‘delivering … a living unborn child, or a substantial portion thereof,’ ” 530 U. S., at 938, thereby targeting extraction of an entire fetus rather than removal of fetal pieces; identifies specific anatomical landmarks to which the fetus must be partially delivered, §1531(b)(1)(A), thereby clarifying that the removal of a small portion of the fetus is not prohibited; requires the fetus to be delivered so that it is partially “outside the [mother’s] body,” §1531(b)(1)(A), thereby establishing that delivering a substantial portion of the fetus into the vagina would not subject a doctor to criminal sanctions; and adds the overt-act requirement, §1531(b)(1), thereby making the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced). Finally, the canon of constitutional avoidance, see, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575, extinguishes any lingering doubt. Interpreting the Act not to prohibit standard D&E is the most reasonable reading and understanding of its terms. Pp. 20–24. (ii) Respondents’ contrary arguments are unavailing. The contention that any D&E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks because doctors cannot predict the amount the cervix will dilate before the procedure does not take account of the Act’s intent requirements, which preclude liability for an accidental intact D&E. The evidence supports the legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance, belying any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E. That many doctors begin every D&E with the objective of removing the fetus as intact as possible based on their belief that this is safer does not prove, as respondents suggest, that every D&E might violate the Act, thereby imposing an undue burden. It demonstrates only that those doctors must adjust their conduct to the law by not attempting to deliver the fetus to an anatomical landmark. Respondents have not shown that requiring doctors to intend dismemberment before such a delivery will prohibit the vast majority of D&E abortions. Pp. 24–26. 3. The Act, measured by its text in this facial attack, does not impose a “substantial obstacle” to late-term, but previability, abortions, as prohibited by the Casey plurality, 505 U. S., at 878. Pp. 26–37. (a) The contention that the Act’s congressional purpose was to create such an obstacle is rejected. The Act’s stated purposes are protecting innocent human life from a brutal and inhumane procedure and protecting the medical community’s ethics and reputation. The government undoubtedly “has an interest in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U. S. 702, 731. Moreover, Casey reaffirmed that the government may use its voice and its regulatory authority to show its profound respect for the life within the woman. See, e.g., 505 U. S., at 873. The Act’s ban on abortions involving partial delivery of a living fetus furthers the Government’s objectives. Congress determined that such abortions are similar to the killing of a newborn infant. This Court has confirmed the validity of drawing boundaries to prevent practices that extinguish life and are close to actions that are condemned. Glucksberg, supra, at 732–735, and n. 23. The Act also recognizes that respect for human life finds an ultimate expression in a mother’s love for her child. Whether to have an abortion requires a difficult and painful moral decision, Casey, 505 U. S., at 852–853, which some women come to regret. In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details of the abortion procedure to be used. It is, however, precisely this lack of information that is of legitimate concern to the State. Id., at 873. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. The objection that the Act accomplishes little because the standard D&E is in some respects as brutal, if not more, than intact D&E, is unpersuasive. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, undermines the public’s perception of the doctor’s appropriate role during delivery, and perverts the birth process. Pp. 26–30. (b) The Act’s failure to allow the banned procedure’s use where “ ‘necessary, in appropriate medical judgment, for preservation of the [mother’s] health,’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327–328, does not have the effect of imposing an unconstitutional burden on the abortion right. The Court assumes the Act’s prohibition would be unconstitutional, under controlling precedents, if it “subject[ed] [women] to significant health risks.” Id., at 328. Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their positions. The Court’s precedents instruct that the Act can survive facial attack when this medical uncertainty persists. See, e.g., Kansas v. Hendricks, 521 U. S. 346, 360, n. 3. This traditional rule is consistent with Casey, which confirms both that the State has an interest in promoting respect for human life at all stages in the pregnancy, and that abortion doctors should be treated the same as other doctors. Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. Other considerations also support the Court’s conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available. In addition, if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of “a living fetus,” 18 U. S. C. §1531(b)(1)(A). Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 77–79, distinguished. The Court rejects certain of the parties’ arguments. On the one hand, the Attorney General’s contention that the Act should be upheld based on the congressional findings alone fails because some of the Act’s recitations are factually incorrect and some of the important findings have been superseded. Also unavailing, however, is respondents’ contention that an abortion regulation must contain a health exception if “substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health, ” Stenberg, 530 U. S., at 938. Interpreting Stenberg as leaving no margin for legislative error in the face of medical uncertainty is too exacting a standard. Marginal safety considerations, including the balance of risks, are within the legislative competence where, as here, the regulation is rational and pursues legitimate ends, and standard, safe medical options are available. Pp. 31–37. 4. These facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. Cf. Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. ___, ___. This is the proper manner to protect the woman’s health if it can be shown that in discrete and well-defined instances a condition has or is likely to occur in which the procedure prohibited by the Act must be used. No as-applied challenge need be brought if the Act’s prohibition threatens a woman’s life, because the Act already contains a life exception. 18 U. S. C. §1531(a). Pp. 37–39. No. 05–380, 413 F. 3d 791; 05–1382, 435 F. 3d 1163, reversed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion, in which Scalia, J., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. Together with No. 05–1382, Gonzales, Attorney General v. Planned Parenthood Federation of America, Inc., et al., on certiorari to the United States Court of Appeals for the Ninth Circuit.
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These cases require us to consider the validity of the Partial-Birth Abortion Ban Act of 2003 (Act), 18 U. S. C. §1531 (2000 ed., Supp. IV), a federal statute regulating abortion procedures. In recitations preceding its operative provisions the Act refers to the Court’s opinion in Stenberg v. Carhart, 530 U. S. 914 (2000), which also addressed the subject of abortion procedures used in the later stages of pregnancy. Compared to the state statute at issue in Stenberg, the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it. In No. 05–380 (Carhart) respondents are LeRoy Carhart, William G. Fitzhugh, William H. Knorr, and Jill L. Vibhakar, doctors who perform second-trimester abortions. These doctors filed their complaint against the Attorney General of the United States in the United States District Court for the District of Nebraska. They challenged the constitutionality of the Act and sought a permanent injunction against its enforcement. Carhart v. Ashcroft, 331 F. Supp. 2d 805 (2004). In 2004, after a 2-week trial, the District Court granted a permanent injunction that prohibited the Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. Id., at 1048. The Court of Appeals for the Eighth Circuit affirmed. 413 F. 3d 791 (2005). We granted certiorari. 546 U. S. 1169 (2006). In No. 05–1382 (Planned Parenthood) respondents are Planned Parenthood Federation of America, Inc., Planned Parenthood Golden Gate, and the City and County of San Francisco. The Planned Parenthood entities sought to enjoin enforcement of the Act in a suit filed in the United States District Court for the Northern District of California. Planned Parenthood Federation of Am. v. Ashcroft, 320 F. Supp. 2d 957 (2004). The City and County of San Francisco intervened as a plaintiff. In 2004, the District Court held a trial spanning a period just short of three weeks, and it, too, enjoined the Attorney General from enforcing the Act. Id., at 1035. The Court of Appeals for the Ninth Circuit affirmed. 435 F. 3d 1163 (2006). We granted certiorari. 547 U. S. ___ (2006). I A The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in Stenberg, to discuss abortion procedures in some detail. Three United States District Courts heard extensive evidence describing the procedures. In addition to the two courts involved in the instant cases the District Court for the Southern District of New York also considered the constitutionality of the Act. Nat. Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436 (2004). It found the Act unconstitutional, id., at 493, and the Court of Appeals for the Second Circuit affirmed, Nat. Abortion Federation v. Gonzales, 437 F. 3d 278 (2006). The three District Courts relied on similar medical evidence; indeed, much of the evidence submitted to the Carhart court previously had been submitted to the other two courts. 331 F. Supp. 2d, at 809–810. We refer to the District Courts’ exhaustive opinions in our own discussion of abortion procedures. Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child’s development. Between 85 and 90 percent of the approximately 1.3 million abortions performed each year in the United States take place in the first three months of pregnancy, which is to say in the first trimester. Planned Parenthood, 320 F. Supp. 2d, at 960, and n. 4; App. in No. 05–1382, pp. 45–48. The most common first-trimester abortion method is vacuum aspiration (otherwise known as suction curettage) in which the physician vacuums out the embryonic tissue. Early in this trimester an alternative is to use medication, such as mifepristone (commonly known as RU–486), to terminate the pregnancy. Nat. Abortion Federation, supra, at 464, n. 20. The Act does not regulate these procedures. Of the remaining abortions that take place each year, most occur in the second trimester. The surgical procedure referred to as “dilation and evacuation” or “D&E” is the usual abortion method in this trimester. Planned Parenthood, 320 F. Supp. 2d, at 960–961. Although individual techniques for performing D&E differ, the general steps are the same. A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. Nat. Abortion Federation, supra, at 465; App. in No. 05–1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e.g., Carhart, 331 F. Supp. 2d, at 852, 856, 859, 862–865, 868, 870, 873–874, 876–877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less. Nat. Abortion Federation, supra, at 464–465; Planned Parenthood, supra, at 961. After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. See, e.g., Nat. Abortion Federation, supra, at 465; Planned Parenthood, supra, at 962. Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus’ body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit. Carhart, supra, at 907–912; Nat. Abortion Federation, supra, at 474–475. The abortion procedure that was the impetus for the numerous bans on “partial-birth abortion,” including the Act, is a variation of this standard D&E. See M. Haskell, Dilation and Extraction for Late Second Trimester Abortion (1992), 1 Appellant’s App. in No. 04–3379 (CA8), p. 109 (hereinafter Dilation and Extraction). The medical community has not reached unanimity on the appropriate name for this D&E variation. It has been referred to as “intact D&E,” “dilation and extraction” (D&X), and “intact D&X.” Nat. Abortion Federation, supra, at 440, n. 2; see also F. Cunningham et al., Williams Obstetrics 243 (22d ed. 2005) (identifying the procedure as D&X); Danforth’s Obstetrics and Gynecology 567 (J. Scott, R. Gibbs, B. Karlan, & A. Haney eds. 9th ed. 2003) (identifying the procedure as intact D&X); M. Paul, E. Lichtenberg, L. Borgatta, D. Grimes, & P. Stubblefield, A Clinician’s Guide to Medical and Surgical Abortion 136 (1999) (identifying the procedure as intact D&E). For discussion purposes this D&E variation will be referred to as intact D&E. The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes. There are no comprehensive statistics indicating what percentage of all D&Es are performed in this manner. Intact D&E, like regular D&E, begins with dilation of the cervix. Sufficient dilation is essential for the procedure. To achieve intact extraction some doctors thus may attempt to dilate the cervix to a greater degree. This approach has been called “serial” dilation. Carhart, supra, at 856, 870, 873; Planned Parenthood, supra, at 965. Doctors who attempt at the outset to perform intact D&E may dilate for two full days or use up to 25 osmotic dilators. See, e.g., Dilation and Extraction 110; Carhart, supra, at 865, 868, 876, 886. In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified: “If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don’t close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible.” App. in No. 05–1382, at 74. Rotating the fetus as it is being pulled decreases the odds of dismemberment. Carhart, supra, at 868–869; App. in No. 05–380, pp. 40–41; 5 Appellant’s App. in No. 04–3379 (CA8), p. 1469. A doctor also “may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level—sometimes using both his hand and a forceps—to exert traction to retrieve the fetus intact until the head is lodged in the [cervix].” Carhart, 331 F. Supp. 2d, at 886–887. Intact D&E gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110–111. In the usual intact D&E the fetus’ head lodges in the cervix, and dilation is insufficient to allow it to pass. See, e.g., ibid.; App. in No. 05–380, at 577; App. in No. 05–1382, at 74, 282. Haskell explained the next step as follows: “ ‘At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and “hooks” the shoulders of the fetus with the index and ring fingers (palm down). “ ‘While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger. “ ‘[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening. “ ‘The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.’ ” H. R. Rep. No. 108–58, p. 3 (2003). This is an abortion doctor’s clinical description. Here is another description from a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee: “ ‘Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms—everything but the head. The doctor kept the head right inside the uterus… . “ ‘The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. “ ‘The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp… . “ ‘He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.’ ” Ibid. Dr. Haskell’s approach is not the only method of killing the fetus once its head lodges in the cervix, and “the process has evolved” since his presentation. Planned Parenthood, 320 F. Supp. 2d, at 965. Another doctor, for example, squeezes the skull after it has been pierced “so that enough brain tissue exudes to allow the head to pass through.” App. in No. 05–380, at 41; see also Carhart, supra, at 866–867, 874. Still other physicians reach into the cervix with their forceps and crush the fetus’ skull. Carhart, supra, at 858, 881. Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it. Id., at 864, 878; see also Planned Parenthood, supra, at 965. Some doctors performing an intact D&E attempt to remove the fetus without collapsing the skull. See Carhart, supra, at 866, 869. Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because “the objective of [his] procedure is to perform an abortion,” not a birth. App. in No. 05–1382, at 408–409. The doctor thus answered in the affirmative when asked whether he would “hold the fetus’ head on the internal side of the [cervix] in order to collapse the skull” and kill the fetus before it is born. Id., at 409; see also Carhart, supra, at 862, 878. Another doctor testified he crushes a fetus’ skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has “some viability to it, some movement of limbs,” according to this doctor, “[is] always a difficult situation.” App. in No. 05–380, at 94; see Carhart, supra, at 858. D&E and intact D&E are not the only second-trimester abortion methods. Doctors also may abort a fetus through medical induction. The doctor medicates the woman to induce labor, and contractions occur to deliver the fetus. Induction, which unlike D&E should occur in a hospital, can last as little as 6 hours but can take longer than 48. It accounts for about five percent of second-trimester abortions before 20 weeks of gestation and 15 percent of those after 20 weeks. Doctors turn to two other methods of second-trimester abortion, hysterotomy and hysterectomy, only in emergency situations because they carry increased risk of complications. In a hysterotomy, as in a cesarean section, the doctor removes the fetus by making an incision through the abdomen and uterine wall to gain access to the uterine cavity. A hysterectomy requires the removal of the entire uterus. These two procedures represent about .07% of second-trimester abortions. Nat. Abortion Federation, 330 F. Supp. 2d, at 467; Planned Parenthood, supra, at 962–963. B After Dr. Haskell’s procedure received public attention, with ensuing and increasing public concern, bans on “ ‘partial birth abortion’ ” proliferated. By the time of the Stenberg decision, about 30 States had enacted bans designed to prohibit the procedure. 530 U. S., at 995–996, and nn. 12–13 (Thomas, J., dissenting); see also H. R. Rep. No. 108–58, at 4–5. In 1996, Congress also acted to ban partial-birth abortion. President Clinton vetoed the congressional legislation, and the Senate failed to override the veto. Congress approved another bill banning the procedure in 1997, but President Clinton again vetoed it. In 2003, after this Court’s decision in Stenberg, Congress passed the Act at issue here. H. R. Rep. No. 108–58, at 12–14. On November 5, 2003, President Bush signed the Act into law. It was to take effect the following day. 18 U. S. C. §1531(a) (2000 ed., Supp. IV). The Act responded to Stenberg in two ways. First, Congress made factual findings. Congress determined that this Court in Stenberg “was required to accept the very questionable findings issued by the district court judge,” §2(7), 117 Stat. 1202, notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 768, ¶(7) (Congressional Findings), but that Congress was “not bound to accept the same factual findings,” ibid., ¶(8). Congress found, among other things, that “[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” Id., at 767, ¶(1). Second, and more relevant here, the Act’s language differs from that of the Nebraska statute struck down in Stenberg. See 530 U. S., at 921–922 (quoting Neb. Rev. Stat. Ann. §§28–328(1), 28–326(9) (Supp. 1999)). The operative provisions of the Act provide in relevant part: “(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment. “(b) As used in this section— “(1) the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion— “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and “(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and “(2) the term ‘physician’ means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section. . . . . . “(d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. “(2) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place. “(e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section.” 18 U. S. C. §1531 (2000 ed., Supp. IV). The Act also includes a provision authorizing civil actions that is not of relevance here. §1531(c). C The District Court in Carhart concluded the Act was unconstitutional for two reasons. First, it determined the Act was unconstitutional because it lacked an exception allowing the procedure where necessary for the health of the mother. 331 F. Supp. 2d, at 1004–1030. Second, the District Court found the Act deficient because it covered not merely intact D&E but also certain other D&Es. Id., at 1030–1037. The Court of Appeals for the Eighth Circuit addressed only the lack of a health exception. 413 F. 3d, at 803–804. The court began its analysis with what it saw as the appropriate question—“whether ‘substantial medical authority’ supports the medical necessity of the banned procedure.” Id., at 796 (quoting Stenberg, 530 U. S., at 938). This was the proper framework, according to the Court of Appeals, because “when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women’s health by including a health exception.” 413 F. 3d, at 796. The court rejected the Attorney General’s attempt to demonstrate changed evidentiary circumstances since Stenberg and considered itself bound by Stenberg’s conclusion that a health exception was required. 413 F. 3d, at 803 (explaining “[t]he record in [the] case and the record in Stenberg [were] similar in all significant respects”). It invalidated the Act. Ibid. D The District Court in Planned Parenthood concluded the Act was unconstitutional “because it (1) pose[d] an undue burden on a woman’s ability to choose a second trimester abortion; (2) [was] unconstitutionally vague; and (3) require[d] a health exception as set forth by … Stenberg.” 320 F. Supp. 2d, at 1034–1035. The Court of Appeals for the Ninth Circuit agreed. Like the Court of Appeals for the Eighth Circuit, it concluded the absence of a health exception rendered the Act unconstitutional. The court interpreted Stenberg to require a health exception unless “there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of women.” 435 F. 3d, at 1173. Even after applying a deferential standard of review to Congress’ factual findings, the Court of Appeals determined “substantial disagreement exists in the medical community regarding whether” the procedures prohibited by the Act are ever necessary to preserve a woman’s health. Id., at 1175–1176. The Court of Appeals concluded further that the Act placed an undue burden on a woman’s ability to obtain a second-trimester abortion. The court found the textual differences between the Act and the Nebraska statute struck down in Stenberg insufficient to distinguish D&E and intact D&E. 435 F. 3d, at 1178–1180. As a result, according to the Court of Appeals, the Act imposed an undue burden because it prohibited D&E. Id., at 1180–1181. Finally, the Court of Appeals found the Act void for vagueness. Id., at 1181. Abortion doctors testified they were uncertain which procedures the Act made criminal. The court thus concluded the Act did not offer physicians clear warning of its regulatory reach. Id., at 1181–1184. Resting on its understanding of the remedial framework established by this Court in Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328–330 (2006), the Court of Appeals held the Act was unconstitutional on its face and should be permanently enjoined. 435 F. 3d, at 1184–1191. II The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), did not find support from all those who join the instant opinion. See id., at 979–1002 (Scalia, J., joined by Thomas, J., inter alios, concurring in judgment in part and dissenting in part). Whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated were the Court now to affirm the judgments of the Courts of Appeals. Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary: “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.” 505 U. S., at 846 (opinion of the Court). Though all three holdings are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child. To implement its holding, Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. 505 U. S., at 875–876, 878 (plurality opinion). On this point Casey overruled the holdings in two cases because they undervalued the State’s interest in potential life. See id., at 881–883 (joint opinion) (overruling Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986) and Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983)). We assume the following principles for the purposes of this opinion. Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id., at 878. On the other hand, “[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar. III We begin with a determination of the Act’s operation and effect. A straightforward reading of the Act’s text demonstrates its purpose and the scope of its provisions: It regulates and proscribes, with exceptions or qualifications to be discussed, performing the intact D&E procedure. Respondents agree the Act encompasses intact D&E, but they contend its additional reach is both unclear and excessive. Respondents assert that, at the least, the Act is void for vagueness because its scope is indefinite. In the alternative, respondents argue the Act’s text proscribes all D&Es. Because D&E is the most common second-trimester abortion method, respondents suggest the Act imposes an undue burden. In this litigation the Attorney General does not dispute that the Act would impose an undue burden if it covered standard D&E. We conclude that the Act is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face. A The Act punishes “knowingly perform[ing]” a “partial-birth abortion.” §1531(a) (2000 ed., Supp. IV). It defines the unlawful abortion in explicit terms. §1531(b)(1). First, the person performing the abortion must “vaginally delive[r] a living fetus.” §1531(b)(1)(A). The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy). The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. See, e.g., Planned Parenthood, 320 F. Supp. 2d, at 971–972. We do not understand this point to be contested by the parties. Second, the Act’s definition of partial-birth abortion requires the fetus to be delivered “until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.” §1531(b)(1)(A) (2000 ed., Supp. IV). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these “anatomical ‘landmarks’ ”—where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions of the Act do not apply. Brief for Petitioner in No. 05–380, p. 46. Third, to fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.” §1531(b)(1)(B) (2000 ed., Supp. IV). For purposes of criminal liability, the overt act causing the fetus’ death must be separate from delivery. And the overt act must occur after the delivery to an anatomical landmark. This is because the Act proscribes killing “the partially delivered” fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark. Ibid. Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have “deliberately and intentionally” delivered the fetus to one of the Act’s anatomical landmarks. §1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” Ibid. If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind. See generally 1 W. LaFave, Substantive Criminal Law §5.1 (2d ed. 2003) (hereinafter LaFave); 1 C. Torcia, Wharton’s Criminal Law §27 (15th ed. 1993). B Respondents contend the language described above is indeterminate, and they thus argue the Act is unconstitutionally vague on its face. “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983); Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513, 525 (1994). The Act satisfies both requirements. The Act provides doctors “of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). Indeed, it sets forth “relatively clear guidelines as to prohibited conduct” and provides “objective criteria” to evaluate whether a doctor has performed a prohibited procedure. Posters ‘N’ Things, supra, at 525–526. Unlike the statutory language in Stenberg that prohibited the delivery of a “ ‘substantial portion’ ” of the fetus—where a doctor might question how much of the fetus is a substantial portion—the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other. Stenberg, 530 U. S., at 922 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). Doctors performing D&E will know that if they do not deliver a living fetus to an anatomical landmark they will not face criminal liability. This conclusion is buttressed by the intent that must be proved to impose liability. The Court has made clear that scienter requirements alleviate vagueness concerns. Posters ‘N’ Things, supra, at 526; see also Colautti v. Franklin, 439 U. S. 379, 395 (1979) (“This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea”). The Act requires the doctor deliberately to have delivered the fetus to an anatomical landmark. §1531(b)(1)(A) (2000 ed., Supp. IV). Because a doctor performing a D&E will not face criminal liability if he or she delivers a fetus beyond the prohibited point by mistake, the Act cannot be described as “a trap for those who act in good faith.” Colautti, supra, at 395 (internal quotation marks omitted). Respondents likewise have failed to show that the Act should be invalidated on its face because it encourages arbitrary or discriminatory enforcement. Kolender, supra, at 357. Just as the Act’s anatomical landmarks provide doctors with objective standards, they also “establish minimal guidelines to govern law enforcement.” Smith v. Goguen, 415 U. S. 566, 574 (1974). The scienter requirements narrow the scope of the Act’s prohibition and limit prosecutorial discretion. It cannot be said that the Act “vests virtually complete discretion in the hands of [law enforcement] to determine whether the [doctor] has satisfied [its provisions].” Kolender, supra, at 358 (invalidating a statute regulating loitering). Respondents’ arguments concerning arbitrary enforcement, furthermore, are somewhat speculative. This is a preenforcement challenge, where “no evidence has been, or could be, introduced to indicate whether the [Act] has been enforced in a discriminatory manner or with the aim of inhibiting [constitutionally protected conduct].” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 503 (1982). The Act is not vague. C We next determine whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. A review of the statutory text discloses the limits of its reach. The Act prohibits intact D&E; and, notwithstanding respondents’ arguments, it does not prohibit the D&E procedure in which the fetus is removed in parts. 1 The Act prohibits a doctor from intentionally performing an intact D&E. The dual prohibitions of the Act, both of which are necessary for criminal liability, correspond with the steps generally undertaken during this type of procedure. First, a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation. See 18 U. S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). Second, the doctor proceeds to pierce the fetal skull with scissors or crush it with forceps. This step satisfies the overt-act requirement because it kills the fetus and is distinct from delivery. See §1531(b)(1)(B). The Act’s intent requirements, however, limit its reach to those physicians who carry out the intact D&E after intending to undertake both steps at the outset. The Act excludes most D&Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability. A doctor performing a standard D&E procedure can often “tak[e] about 10–15 ‘passes’ through the uterus to remove the entire fetus.” Planned Parenthood, 320 F. Supp. 2d, at 962. Removing the fetus in this manner does not violate the Act because the doctor will not have delivered the living fetus to one of the anatomical landmarks or committed an additional overt act that kills the fetus after partial delivery. §1531(b)(1) (2000 ed., Supp. IV). A comparison of the Act with the Nebraska statute struck down in Stenberg confirms this point. The statute in Stenberg prohibited “ ‘deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.’ ” 530 U. S., at 922 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). The Court concluded that this statute encompassed D&E because “D&E will often involve a physician pulling a ‘substantial portion’ of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus.” 530 U. S., at 939. The Court also rejected the limiting interpretation urged by Nebraska’s Attorney General that the statute’s reference to a “procedure” that “ ‘kill[s] the unborn child’ ” was to a distinct procedure, not to the abortion procedure as a whole. Id., at 943. Congress, it is apparent, responded to these concerns because the Act departs in material ways from the statute in Stenberg. It adopts the phrase “delivers a living fetus,” §1531(b)(1)(A) (2000 ed., Supp. IV), instead of “ ‘delivering . . . a living unborn child, or a substantial portion thereof,’ ” 530 U. S., at 938 (quoting Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999)). The Act’s language, unlike the statute in Stenberg, expresses the usual meaning of “deliver” when used in connection with “fetus,” namely, extraction of an entire fetus rather than removal of fetal pieces. See Stedman’s Medical Dictionary 470 (27th ed. 2000) (defining deliver as “[t]o assist a woman in childbirth” and “[t]o extract from an enclosed place, as the fetus from the womb, an object or foreign body”); see also I. Dox, B. Melloni, G. Eisner, & J. Melloni, The HarperCollins Illustrated Medical Dictionary 160 (4th ed. 2001); Merriam Webster’s Collegiate Dictionary 306 (10th ed. 1997). The Act thus displaces the interpretation of “delivering” dictated by the Nebraska statute’s reference to a “substantial portion” of the fetus. Stenberg, supra, at 944 (indicating that the Nebraska “statute itself specifies that it applies both to delivering ‘an intact unborn child’ or ‘a substantial portion thereof’ ”). In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result. See, e.g., 2A N. Singer, Sutherland on Statutes and Statutory Construction §47:28 (rev. 6th ed. 2000). Here, unlike in Stenberg, the language does not require a departure from the ordinary meaning. D&E does not involve the delivery of a fetus because it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix. The identification of specific anatomical landmarks to which the fetus must be partially delivered also differentiates the Act from the statute at issue in Stenberg. §1531(b)(1)(A) (2000 ed., Supp. IV). The Court in Stenberg interpreted “ ‘substantial portion’ ” of the fetus to include an arm or a leg. 530 U. S., at 939. The Act’s anatomical landmarks, by contrast, clarify that the removal of a small portion of the fetus is not prohibited. The landmarks also require the fetus to be delivered so that it is partially “outside the body of the mother.” §1531(b)(1)(A). To come within the ambit of the Nebraska statute, on the other hand, a substantial portion of the fetus only had to be delivered into the vagina; no part of the fetus had to be outside the body of the mother before a doctor could face criminal sanctions. Id., at 938–939. By adding an overt-act requirement Congress sought further to meet the Court’s objections to the state statute considered in Stenberg. Compare 18 U. S. C. §1531(b)(1) (2000 ed., Supp. IV) with Neb. Rev. Stat. Ann. §28–326(9) (Supp. 1999). The Act makes the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced) by differentiating between the overall partial-birth abortion and the distinct overt act that kills the fetus. See Stenberg, 530 U. S., at 943–944. The fatal overt act must occur after delivery to an anatomical landmark, and it must be something “other than [the] completion of delivery.” §1531(b)(1)(B). This distinction matters because, unlike intact D&E, standard D&E does not involve a delivery followed by a fatal act. The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D&E procedure. “ ‘[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ ” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (quoting Hooper v. California, 155 U. S. 648, 657 (1895)). It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic “ ‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’ ” Stenberg, supra, at 977 (Kennedy, J., dissenting) (quoting Thornburgh, 476 U. S., at 829 (O’Connor, J., dissenting)). Casey put this novel statutory approach to rest. Stenberg, supra, at 977 (Kennedy, J., dissenting). Stenberg need not be interpreted to have revived it. We read that decision instead to stand for the uncontroversial proposition that the canon of constitutional avoidance does not apply if a statute is not “genuinely susceptible to two constructions.” Almendarez-Torres v. United States, 523 U. S. 224, 238 (1998); see also Clark v. Martinez, 543 U. S. 371, 385 (2005). In Stenberg the Court found the statute covered D&E. 530 U. S., at 938–945. Here, by contrast, interpreting the Act so that it does not prohibit standard D&E is the most reasonable reading and understanding of its terms. 2 Contrary arguments by the respondents are unavailing. Respondents look to situations that might arise during D&E, situations not examined in Stenberg. They contend—relying on the testimony of numerous abortion doctors—that D&E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion procedure. It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D&E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner. Brief for Respondent Planned Parenthood et al. in No. 05–1382, p. 38. This reasoning, however, does not take account of the Act’s intent requirements, which preclude liability from attaching to an accidental intact D&E. If a doctor’s intent at the outset is to perform a D&E in which the fetus would not be delivered to either of the Act’s anatomical landmarks, but the fetus nonetheless is delivered past one of those points, the requisite and prohibited scienter is not present. 18 U. S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). When a doctor in that situation completes an abortion by performing an intact D&E, the doctor does not violate the Act. It is true that intent to cause a result may sometimes be inferred if a person “knows that that result is practically certain to follow from his conduct.” 1 LaFave §5.2(a), at 341. Yet abortion doctors intending at the outset to perform a standard D&E procedure will not know that a prohibited abortion “is practically certain to follow from” their conduct. Ibid. A fetus is only delivered largely intact in a small fraction of the overall number of D&E abortions. Planned Parenthood, 320 F. Supp. 2d, at 965. The evidence also supports a legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance. Doctors, for example, may remove the fetus in a manner that will increase the chances of an intact delivery. See, e.g., App. in No. 05–1382, at 74, 452. And intact D&E is usually described as involving some manner of serial dilation. See, e.g., Dilation and Extraction 110. Doctors who do not seek to obtain this serial dilation perform an intact D&E on far fewer occasions. See, e.g., Carhart, 331 F. Supp. 2d, at 857–858 (“In order for intact removal to occur on a regular basis, Dr. Fitzhugh would have to dilate his patients with a second round of laminaria”). This evidence belies any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E. Many doctors who testified on behalf of respondents, and who objected to the Act, do not perform an intact D&E by accident. On the contrary, they begin every D&E abortion with the objective of removing the fetus as intact as possible. See, e.g., id., at 869 (“Since Dr. Chasen believes that the intact D & E is safer than the dismemberment D & E, Dr. Chasen’s goal is to perform an intact D & E every time”); see also id., at 873, 886. This does not prove, as respondents suggest, that every D&E might violate the Act and that the Act therefore imposes an undue burden. It demonstrates only that those doctors who intend to perform a D&E that would involve delivery of a living fetus to one of the Act’s anatomical landmarks must adjust their conduct to the law by not attempting to deliver the fetus to either of those points. Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions. The Act, then, cannot be held invalid on its face on these grounds. IV Under the principles accepted as controlling here, the Act, as we have interpreted it, would be unconstitutional “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U. S., at 878 (plurality opinion). The abortions affected by the Act’s regulations take place both previability and postviability; so the quoted language and the undue burden analysis it relies upon are applicable. The question is whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to late-term, but previability, abortions. The Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity. A The Act’s purposes are set forth in recitals preceding its operative provisions. A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process. Congress stated as follows: “Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.” Congressional Findings (14)(N), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. The Act expresses respect for the dignity of human life. Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the Act explain: “Partial-birth abortion … confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.” Congressional Findings (14)(J), ibid. There can be no doubt the government “has an interest in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U. S. 702, 731 (1997); see also Barsky v. Board of Regents of Univ. of N. Y., 347 U. S. 442, 451 (1954) (indicating the State has “legitimate concern for maintaining high standards of professional conduct” in the practice of medicine). Under our precedents it is clear the State has a significant role to play in regulating the medical profession. Casey reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court’s precedents after Roe had “undervalue[d] the State’s interest in potential life.” 505 U. S., at 873 (plurality opinion); see also id., at 871. The plurality opinion indicated “[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id., at 874. This was not an idle assertion. The three premises of Casey must coexist. See id., at 846 (opinion of the Court). The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn. The Act’s ban on abortions that involve partial delivery of a living fetus furthers the Government’s objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a “disturbing similarity to the killing of a newborn infant,” Congressional Findings (14)(L), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769, and thus it was concerned with “draw[ing] a bright line that clearly distinguishes abortion and infanticide.” Congressional Findings (14)(G), ibid. The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. Glucksberg found reasonable the State’s “fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia.” 521 U. S., at 732–735, and n. 23. Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid. In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g., Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479. It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Casey, supra, at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning”). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form. It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion. It is objected that the standard D&E is in some respects as brutal, if not more, than the intact D&E, so that the legislation accomplishes little. What we have already said, however, shows ample justification for the regulation. Partial-birth abortion, as defined by the Act, differs from a standard D&E because the former occurs when the fetus is partially outside the mother to the point of one of the Act’s anatomical landmarks. It was reasonable for Congress to think that partial-birth abortion, more than standard D&E, “undermines the public’s perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world.” Congressional Findings (14)(K), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. There would be a flaw in this Court’s logic, and an irony in its jurisprudence, were we first to conclude a ban on both D&E and intact D&E was overbroad and then to say it is irrational to ban only intact D&E because that does not proscribe both procedures. In sum, we reject the contention that the congressional purpose of the Act was “to place a substantial obstacle in the path of a woman seeking an abortion.” 505 U. S., at 878 (plurality opinion). B The Act’s furtherance of legitimate government interests bears upon, but does not resolve, the next question: whether the Act has the effect of imposing an unconstitutional burden on the abortion right because it does not allow use of the barred procedure where “ ‘necessary, in appropriate medical judgment, for [the] preservation of the … health of the mother.’ ” Ayotte, 546 U. S., at 327–328 (quoting Casey, supra, at 879 (plurality opinion)). The prohibition in the Act would be unconstitutional, under precedents we here assume to be controlling, if it “subject[ed] [women] to significant health risks.” Ayotte, supra, at 328; see also Casey, supra, at 880 (opinion of the Court). In Ayotte the parties agreed a health exception to the challenged parental-involvement statute was necessary “to avert serious and often irreversible damage to [a pregnant minor’s] health.” 546 U. S., at 328. Here, by contrast, whether the Act creates significant health risks for women has been a contested factual question. The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their position. Respondents presented evidence that intact D&E may be the safest method of abortion, for reasons similar to those adduced in Stenberg. See 530 U. S., at 932. Abortion doctors testified, for example, that intact D&E decreases the risk of cervical laceration or uterine perforation because it requires fewer passes into the uterus with surgical instruments and does not require the removal of bony fragments of the dismembered fetus, fragments that may be sharp. Respondents also presented evidence that intact D&E was safer both because it reduces the risks that fetal parts will remain in the uterus and because it takes less time to complete. Respondents, in addition, proffered evidence that intact D&E was safer for women with certain medical conditions or women with fetuses that had certain anomalies. See, e.g., Carhart, 331 F. Supp. 2d, at 923–929; Nat. Abortion Federation, supra, at 470–474; Planned Parenthood, 320 F. Supp. 2d, at 982–983. These contentions were contradicted by other doctors who testified in the District Courts and before Congress. They concluded that the alleged health advantages were based on speculation without scientific studies to support them. They considered D&E always to be a safe alternative. See, e.g., Carhart, supra, at 930–940; Nat. Abortion Federation, 330 F. Supp. 2d, at 470–474; Planned Parenthood, 320 F. Supp. 2d, at 983. There is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women. See, e.g., id., at 1033 (“[T]here continues to be a division of opinion among highly qualified experts regarding the necessity or safety of intact D & E”); see also Nat. Abortion Federation, supra, at 482. The three District Courts that considered the Act’s constitutionality appeared to be in some disagreement on this central factual question. The District Court for the District of Nebraska concluded “the banned procedure is, sometimes, the safest abortion procedure to preserve the health of women.” Carhart, supra, at 1017. The District Court for the Northern District of California reached a similar conclusion. Planned Parenthood, supra, at 1002 (finding intact D&E was “under certain circumstances … significantly safer than D & E by disarticulation”). The District Court for the Southern District of New York was more skeptical of the purported health benefits of intact D&E. It found the Attorney General’s “expert witnesses reasonably and effectively refuted [the plaintiffs’] proffered bases for the opinion that [intact D&E] has safety advantages over other second-trimester abortion procedures.” Nat. Abortion Federation, 330 F. Supp. 2d, at 479. In addition it did “not believe that many of [the plaintiffs’] purported reasons for why [intact D&E] is medically necessary [were] credible; rather [it found them to be] theoretical or false.” Id., at 480. The court nonetheless invalidated the Act because it determined “a significant body of medical opinion … holds that D & E has safety advantages over induction and that [intact D&E] has some safety advantages (however hypothetical and unsubstantiated by scientific evidence) over D & E for some women in some circumstances.” Ibid. The question becomes whether the Act can stand when this medical uncertainty persists. The Court’s precedents instruct that the Act can survive this facial attack. The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty. See Kansas v. Hendricks, 521 U. S. 346, 360, n. 3 (1997); Jones v. United States, 463 U. S. 354, 364–365, n. 13, 370 (1983); Lambert v. Yellowley, 272 U. S. 581, 597 (1926); Collins v. Texas, 223 U. S. 288, 297–298 (1912); Jacobson v. Massachusetts, 197 U. S. 11, 30–31 (1905); see also Stenberg, supra, at 969–972 (Kennedy, J., dissenting); Marshall v. United States, 414 U. S. 417, 427 (1974) (“When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad”). This traditional rule is consistent with Casey, which confirms the State’s interest in promoting respect for human life at all stages in the pregnancy. Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community. In Casey the controlling opinion held an informed-consent requirement in the abortion context was “no different from a requirement that a doctor give certain specific information about any medical procedure.” 505 U. S., at 884 (joint opinion). The opinion stated “the doctor-patient relation here is entitled to the same solicitude it receives in other contexts.” Ibid.; see also Webster v. Reproductive Health Services, 492 U. S. 490, 518–519 (1989) (plurality opinion) (criticizing Roe’s trimester framework because, inter alia, it “left this Court to serve as the country’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States” (internal quotation marks omitted)); Mazurek v. Armstrong, 520 U. S. 968, 973 (1997) (per curiam) (upholding a restriction on the performance of abortions to licensed physicians despite the respondents’ contention “all health evidence contradicts the claim that there is any health basis for the law” (internal quotation marks omitted)). Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts. See Hendricks, supra, at 360, n. 3. The medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient basis to conclude in this facial attack that the Act does not impose an undue burden. The conclusion that the Act does not impose an undue burden is supported by other considerations. Alternatives are available to the prohibited procedure. As we have noted, the Act does not proscribe D&E. One District Court found D&E to have extremely low rates of medical complications. Planned Parenthood, supra, at 1000. Another indicated D&E was “generally the safest method of abortion during the second trimester.” Carhart, 331 F. Supp. 2d, at 1031; see also Nat. Abortion Federation, supra, at 467–468 (explaining that “[e]xperts testifying for both sides” agreed D&E was safe). In addition the Act’s prohibition only applies to the delivery of “a living fetus.” 18 U. S. C. §1531(b)(1)(A) (2000 ed., Supp. IV). If the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure. The instant cases, then, are different from Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 77–79 (1976), in which the Court invalidated a ban on saline amniocentesis, the then-dominant second-trimester abortion method. The Court found the ban in Danforth to be “an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks.” Id., at 79. Here the Act allows, among other means, a commonly used and generally accepted method, so it does not construct a substantial obstacle to the abortion right. In reaching the conclusion the Act does not require a health exception we reject certain arguments made by the parties on both sides of these cases. On the one hand, the Attorney General urges us to uphold the Act on the basis of the congressional findings alone. Brief for Petitioner in No. 05–380, at 23. Although we review congressional factfinding under a deferential standard, we do not in the circumstances here place dispositive weight on Congress’ findings. The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. See Crowell v. Benson, 285 U. S. 22, 60 (1932) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function”). As respondents have noted, and the District Courts recognized, some recitations in the Act are factually incorrect. See Nat. Abortion Federation, 330 F. Supp. 2d, at 482, 488–491. Whether or not accurate at the time, some of the important findings have been superseded. Two examples suffice. Congress determined no medical schools provide instruction on the prohibited procedure. Congressional Findings (14)(B), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769. The testimony in the District Courts, however, demonstrated intact D&E is taught at medical schools. Nat. Abortion Federation, supra, at 490; Planned Parenthood, 320 F. Supp. 2d, at 1029. Congress also found there existed a medical consensus that the prohibited procedure is never medically necessary. Congressional Findings (1), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 767. The evidence presented in the District Courts contradicts that conclusion. See, e.g., Carhart, supra, at 1012–1015; Nat. Abortion Federation, supra, at 488–489; Planned Parenthood, supra, at 1025–1026. Uncritical deference to Congress’ factual findings in these cases is inappropriate. On the other hand, relying on the Court’s opinion in Stenberg, respondents contend that an abortion regulation must contain a health exception “if ‘substantial medical authority supports the proposition that banning a particular procedure could endanger women’s health.’ ” Brief for Respondents in No. 05–380, p. 19 (quoting 530 U. S., at 938); see also Brief for Respondent Planned Parenthood et al. in No. 05–1382, at 12 (same). As illustrated by respondents’ arguments and the decisions of the Courts of Appeals, Stenberg has been interpreted to leave no margin of error for legislatures to act in the face of medical uncertainty. Carhart, 413 F. 3d, at 796; Planned Parenthood, 435 F. 3d, at 1173; see also Nat. Abortion Federation, 437 F. 3d, at 296 (Walker, C. J., concurring) (explaining the standard under Stenberg “is a virtually insurmountable evidentiary hurdle”). A zero tolerance policy would strike down legitimate abortion regulations, like the present one, if some part of the medical community were disinclined to follow the proscription. This is too exacting a standard to impose on the legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession. Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman’s health, given the availability of other abortion procedures that are considered to be safe alternatives. V The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge. The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. Tr. of Oral Arg. in No. 05–380, pp. 21–23. This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack. The latitude given facial challenges in the First Amendment context is inapplicable here. Broad challenges of this type impose “a heavy burden” upon the parties maintaining the suit. Rust v. Sullivan, 500 U. S. 173, 183 (1991). What that burden consists of in the specific context of abortion statutes has been a subject of some question. Compare Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (“[B]ecause appellees are making a facial challenge to a statute, they must show that no set of circumstances exists under which the Act would be valid” (internal quotation marks omitted)), with Casey, 505 U. S., at 895 (opinion of the Court) (indicating a spousal-notification statute would impose an undue burden “in a large fraction of the cases in which [it] is relevant” and holding the statutory provision facially invalid). See also Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U. S. 1174 (1996). We need not resolve that debate. As the previous sections of this opinion explain, respondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases. Casey, supra, at 895 (opinion of the Court). We note that the statute here applies to all instances in which the doctor proposes to use the prohibited procedure, not merely those in which the woman suffers from medical complications. It is neither our obligation nor within our traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop. “[I]t would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation.” United States v. Raines, 362 U. S. 17, 21 (1960) (internal quotation marks omitted). For this reason, “[a]s-applied challenges are the basic building blocks of constitutional adjudication.” Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1328 (2000). The Act is open to a proper as-applied challenge in a discrete case. Cf. Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U. S. 410, 411–412 (2006) (per curiam). No as-applied challenge need be brought if the prohibition in the Act threatens a woman’s life because the Act already contains a life exception. 18 U. S. C. §1531(a) (2000 ed., Supp. IV). * * * Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception. For these reasons the judgments of the Courts of Appeals for the Eighth and Ninth Circuits are reversed. It is so ordered.
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551.US.587
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The President, by executive orders, created a White House office and several centers within federal agencies to ensure that faith-based community groups are eligible to compete for federal financial support. No congressional legislation specifically authorized these entities, which were created entirely within the Executive Branch, nor has Congress enacted any law specifically appropriating money to their activities, which are funded through general Executive Branch appropriations. Respondents, an organization opposed to Government endorsement of religion and three of its members, brought this suit alleging that petitioners, the directors of the federal offices, violated the Establishment Clause by organizing conferences that were designed to promote, and had the effect of promoting, religious community groups over secular ones. The only asserted basis for standing was that the individual respondents are federal taxpayers opposed to Executive Branch use of congressional appropriations for these conferences. The District Court dismissed the claims for lack of standing, concluding that under Flast v. Cohen, 392 U. S. 83, federal taxpayer standing is limited to Establishment Clause challenges to the constitutionality of exercises of congressional power under the taxing and spending clause of Art. I, §8. Because petitioners acted on the President’s behalf and were not charged with administering a congressional program, the court held that the challenged activities did not authorize taxpayer standing under Flast. The Seventh Circuit reversed, reading Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are financed by a congressional appropriation, even where there is no statutory program and the funds are from appropriations for general administrative expenses. According to the court, a taxpayer has standing to challenge anything done by a federal agency so long as the marginal or incremental cost to the public of the alleged Establishment Clause violation is greater than zero. Held: The judgment is reversed. 433 F. 3d 989, reversed. Justice Alito, joined by The Chief Justice and Justice Kennedy, concluded that because the Seventh Circuit’s broad reading of Flast is incorrect, respondents lack standing. Pp. 6–25. 1. Federal-court jurisdiction is limited to actual “Cases” and “Controversies.” U. S. Const., Art. III. A controlling factor in the definition of such a case or controversy is standing, ASARCO Inc. v. Kadish, 490 U. S. 605, 613, the requisite elements of which are well established: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751. Pp. 6–8. 2. Generally, a federal taxpayer’s interest in seeing that Treasury funds are spent in accordance with the Constitution is too attenuated to give rise to the kind of redressable “personal injury” required for Article III standing. See, e.g., Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447, 485–486. Pp. 8–10. 3. In Flast, the Court carved out a narrow exception to the general constitutional prohibition against taxpayer standing. The taxpayer-plaintiff there alleged that the distribution of federal funds to religious schools under a federal statute violated the Establishment Clause. The Court set out a two-part test for determining standing: “First, … 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… . Secondly, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, §8.” 392 U. S., at 102–103. The Court then held that the particular taxpayer had satisfied both prongs of the test. Id., at 103–104. Pp. 11–12. 4. Respondents’ broad reading of the Flast exception to cover any expenditure of Government funds in violation of the Establishment Clause fails to observe “the rigor with which the Flast exception to the Frothingham principle ought to be applied.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 481. Given that the alleged Establishment Clause violation in Flast was funded by a specific congressional appropriation and was undertaken pursuant to an express congressional mandate, the Court concluded that the taxpayer-plaintiffs had established the requisite “logical link between [their taxpayer] status and the type of legislative enactment attacked.” 392 U. S., at 102. “Their 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. But Flast “limited taxpayer standing to challenges directed ‘only [at] exercises of congressional power’ ” under the Taxing and Spending Clause. Valley Forge, supra, at 479. Pp. 12–13. 5. The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents neither challenge any specific congressional action or appropriation nor ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures in question, which resulted from executive discretion, not congressional action. The Court has never found taxpayer standing under such circumstances. Bowen v. Kendrick, 487 U. S. 589, 619–620, distinguished. Pp. 13–18. 6. Respondents argue to no avail that distinguishing between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion is arbitrary because the injury to taxpayers in both situations is the same as that targeted by the Establishment Clause and Flast—the expenditure for the support of religion of funds exacted from taxpayers. But Flast focused on congressional action, and the invitation to extend its holding to encompass discretionary Executive Branch expenditures must be declined. The Court has repeatedly emphasized that the Flast exception has a “narrow application,” DaimlerChrysler Corp. v. Cuno, 547 U. S. ___, ___, that only “slightly lowered” the bar on taxpayer standing, United States v. Richardson, 418 U. S. 166, 173, and that must be applied with “rigor,” Valley Forge, supra, at 481. Pp. 18–19. 7. Also rejected is respondents’ argument that Executive Branch expenditures in support of religion are no different from legislative extractions. Flast itself rejected this equivalence. 392 U. S., at 102. Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation, or speech—to Establishment Clause challenge by any taxpayer in federal court. Respondents’ proposed rule would also raise serious separation-of-powers concerns, enlisting the federal courts to superintend, at the behest of any federal taxpayer, the speeches, statements, and myriad daily activities of the President, his staff, and other Executive Branch officials. Pp. 19–21. 8. Both the Seventh Circuit and respondents implicitly recognize that unqualified federal taxpayer standing to assert Establishment Clause claims would go too far, but neither has identified a workable limitation. Taking the Circuit’s zero-marginal-cost test literally—i.e., that any marginal cost greater than zero suffices—taxpayers might well have standing to challenge some (and perhaps many) speeches by Government officials. At a minimum, that approach would create difficult and uncomfortable line-drawing problems. Respondents’ proposal to require an expenditure to be fairly traceable to the conduct alleged to violate the Establishment Clause, so that challenges to the content of any particular speech would be screened out, is too vague and ill-defined to be accepted. Pp. 21–23. 9. None of the parade of horribles respondents claim could occur if Flast is not extended to discretionary Executive Branch expenditures has happened. In the unlikely event any do take place, Congress can quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs possessed of standing based on grounds other than their taxpayer status. Pp. 23–24. 10. This case does not require the Court to reconsider Flast. The Seventh Circuit did not apply Flast; it extended it. Valley Forge Christian Academy illustrates that a necessary concomitant of stare decisis is that a precedent is not always expanded to the limit of its logic. That is the approach taken here. Flast is neither extended nor overruled. It is simply left as it was. Pp. 24–25. Justice Scalia, joined by Justice Thomas, concurred in the Court’s judgment, concluding that Flast v. Cohen, 392 U. S. 83, should be overruled as wholly irreconcilable with the Article III restrictions on federal-court jurisdiction that are embodied in the standing doctrine. Pp. 1–21. 1. The Court’s taxpayer-standing cases involving Establishment Clause challenges to government expenditures are notoriously inconsistent because they have inconsistently described the relevant “injury in fact” that Article III requires. Some cases have focused on the financial effect on the taxpayer’s wallet, whereas Flast and the cases that follow its teaching have emphasized the mental displeasure the taxpayer suffers when his funds are extracted and spent in aid of religion. There are only two logical routes available with respect to taxpayer standing. If the mental displeasure created by Establishment Clause violations is concrete and particularized enough to constitute an Article III “injury in fact,” then Flast should be applied to (at a minimum) all challenges to government expenditures allegedly violating constitutional provisions that specifically limit the taxing and spending power; if not, Flast should be overturned. Pp. 2–12. 2. Today’s plurality avails itself of neither principled option, instead accepting the Government’s submission that Flast should be limited to challenges to expenditures that are expressly authorized or mandated by specific congressional enactment. However, the plurality gives no explanation as to why the factual differences between this case and Flast are material. (Whether the challenged government expenditure is expressly allocated by a specific congressional enactment is not relevant to the Article III criteria of injury in fact, traceability, and redressability.) Yet the plurality is also unwilling to acknowledge that Flast erred by relying on purely mental injury. Pp. 12–14. 3. Respondents’ legal position is no more coherent than the plurality’s. They refuse to admit that their argument logically implies that every expenditure of tax revenues that is alleged to violate the Establishment Clause is subject to suit under Flast. Of course, that position finds no support in this Court’s precedents or this Nation’s history. Pp. 14–16. 4. A taxpayer’s purely psychological disapproval that his funds are being spent in an allegedly unlawful manner is never sufficiently concrete and particularized to support Article III standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574. Although overruling precedents is a serious undertaking, stare decisis should not prevent the Court from doing so here. Flast was inconsistent with the cases that came before it and undervalued the separation-of-powers function of standing. Its lack of a logical theoretical underpinning has rendered the Court’s taxpayer-standing doctrine so incomprehensible that appellate judges do not know what to make of it. The case has engendered no reliance interests. Few cases less warrant stare decisis effect. It is past time to overturn Flast. Pp. 17–21. Alito, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Kennedy, J., joined. Kennedy, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
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in which The Chief Justice and Justice Kennedy join. This is a lawsuit in which it was claimed that conferences held as part of the President’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment because, among other things, President Bush and former Secretary of Education Paige gave speeches that used “religious imagery” and praised the efficacy of faith-based programs in delivering social services. The plaintiffs contend that they meet the standing requirements of Article III of the Constitution because they pay federal taxes. It has long been established, however, that the payment of taxes is generally not enough to establish standing to challenge an action taken by the Federal Government. In light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm. And if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus. In Flast v. Cohen, 392 U. S. 83 (1968), we recognized a narrow exception to the general rule against federal taxpayer standing. Under Flast, a plaintiff asserting an Establishment Clause claim has standing to challenge a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause. In the present case, Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that the plaintiffs challenged. Instead, the conferences and speeches were paid for out of general Executive Branch appropriations. The Court of Appeals, however, held that the plaintiffs have standing as taxpayers because the conferences were paid for with money appropriated by Congress. The question that is presented here is whether this broad reading of Flast is correct. We hold that it is not. We therefore reverse the decision of the Court of Appeals. I A In 2001, the President issued an executive order creating the White House Office of Faith-Based and Community Initiatives within the Executive Office of the President. Exec. Order No. 13199, 3 CFR 752 (2001 Comp.). The purpose of this new office was to ensure that “private and charitable community groups, including religious ones … have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes” and adhere to “the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” Ibid. The office was specifically charged with the task of eliminating unnecessary bureaucratic, legislative, and regulatory barriers that could impede such organizations’ effectiveness and ability to compete equally for federal assistance. Id., at 752–753. By separate executive orders, the President also created Executive Department Centers for Faith-Based and Community Initiatives within several federal agencies and departments.[Footnote 1] These centers were given the job of ensuring that faith-based community groups would be eligible to compete for federal financial support without impairing their independence or autonomy, as long as they did “not use direct Federal financial assistance to support any inherently religious activities, such as worship, religious instruction, or proselytization.” Exec. Order No. 13279, 3 CFR §2(f), p. 260 (2002 Comp.). To this end, the President directed that “[n]o organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs,” id., §2(c), at 260, and that “[a]ll organizations that receive Federal financial assistance under social services programs should be prohibited from discriminating against beneficiaries or potential beneficiaries of the social services programs on the basis of religion or religious belief,” id., §2(d), at 260. Petitioners, who have been sued in their official capacities, are the directors of the White House Office and various Executive Department Centers. No congressional legislation specifically authorized the creation of the White House Office or the Executive Department Centers. Rather, they were “created entirely within the executive branch … by Presidential executive order.” Freedom From Religion Foundation, Inc. v. Chao, 433 F. 3d 989, 997 (CA7 2006). Nor has Congress enacted any law specifically appropriating money for these entities’ activities. Instead, their activities are funded through general Executive Branch appropriations. For example, the Department of Education’s Center is funded from money appropriated for the Office of the Secretary of Education, while the Department of Housing and Urban Development’s Center is funded through that Department’s salaries and expenses account. See Government Accountability Office, Faith-Based and Community Initiative: Improvements in Monitoring Grantees and Measuring Performance Could Enhance Accountability, GAO–06–616, p. 21 (June 2006), online at http://www.gao.gov/new.items/d06616.pdf (as visited June 25, 2007, and available in Clerk of Court’s case file); see also Amended Complaint in No. 04–C–381–S (WD Wis.), ¶23, App. to Pet. for Cert. 71a–72a. B The respondents are Freedom From Religion Foundation, Inc., a nonstock corporation “opposed to government endorsement of religion,” id., ¶5, App. to Pet. for Cert. 68a, and three of its members. Respondents brought suit in the United States District Court for the Western District of Wisconsin, alleging that petitioners violated the Establishment Clause by organizing conferences at which faith-based organizations allegedly “are singled out as being particularly worthy of federal funding … , and the belief in God is extolled as distinguishing the claimed effectiveness of faith-based social services.” Id., ¶32, App. to Pet. for Cert. 73a. Respondents further alleged that the content of these conferences sent a message to religious believers “that they are insiders and favored members of the political community” and that the conferences sent the message to nonbelievers “that they are outsiders” and “not full members of the political community.” Id., ¶37, App. to Pet. for Cert. 76a. In short, respondents alleged that the conferences were designed to promote, and had the effect of promoting, religious community groups over secular ones. The only asserted basis for standing was that the individual respondents are federal taxpayers who are “opposed to the use of Congressional taxpayer appropriations to advance and promote religion.” Id., ¶10, App. to Pet. for Cert. 69a; see also id., ¶¶7–9, App. to Pet. for Cert. 68a–69a. In their capacity as federal taxpayers, respondents sought to challenge Executive Branch expenditures for these conferences, which, they contended, violated the Establishment Clause. C The District Court dismissed the claims against petitioners for lack of standing. See Freedom From Religion Foundation, Inc. v. Towey, No. 04–C–381–S (WD Wis., Nov. 15, 2004), App. to Pet. for Cert. 27a–35a. It concluded that under Flast, 392 U. S. 83, federal taxpayer standing is limited to Establishment Clause challenges to the constitutionality of “ ‘exercises of congressional power under the taxing and spending clause of Art. I, §8.’ ” App. to Pet. for Cert. 31a (quoting Flast, supra, at 102). Because petitioners in this case acted “at the President’s request and on the President’s behalf” and were not “charged with the administration of a congressional program,” the District Court concluded that the challenged activities were “not ‘exercises of congressional power’ ” sufficient to provide a basis for taxpayer standing under Flast. App. to Pet. for Cert. 33a–34a. A divided panel of the United States Court of Appeals for the Seventh Circuit reversed. 433 F. 3d 989. The majority read Flast as granting federal taxpayers standing to challenge Executive Branch programs on Establishment Clause grounds so long as the activities are “financed by a congressional appropriation.” 433 F. 3d, at 997. This was the case, the majority concluded, even where “there is no statutory program” enacted by Congress and the funds are “from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power.” Id., at 994. According to the majority, a taxpayer has standing to challenge anything done by a federal agency or officer so long as “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is greater than “zero.” Id., at 995. In dissent, Judge Ripple opined that the majority’s decision reflected a “dramatic expansion of current standing doctrine,” id., at 997, that “cuts the concept of taxpayer standing loose from its moorings,” id., at 998. Noting that “[t]he executive can do nothing without general budget appropriations from Congress,” id., at 1000, he criticized the majority for overstepping Flast’s requirement that a “plaintiff must bring an attack against a disbursement of public funds made in the exercise of Congress’ taxing and spending power,” 433 F. 3d, at 1000 (emphasis in original). The Court of Appeals denied en banc review by a vote of seven to four. 447 F. 3d 988 (CA7 2006). Concurring in the denial of rehearing, Chief Judge Flaum expressed doubt about the panel decision, but noted that “the obvious tension which has evolved in this area of jurisprudence … can only be resolved by the Supreme Court.” Ibid. We granted certiorari to resolve this question, 549 U. S. ___ (2006), and we now reverse. II A Article III of the Constitution limits the judicial power of the United States to the resolution of “Cases” and “Controversies,” and “ ‘Article III standing … enforces the Constitution’s case-or-controversy requirement.’ ” DaimlerChrysler Corp. v. Cuno, 547 U. S. ___, ___ (2006) (slip op., at 6) (quoting Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 11 (2004)). “ ‘No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U. S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976)). “[O]ne of the controlling elements in the definition of a case or controversy under Article III” is standing. ASARCO Inc. v. Kadish, 490 U. S. 605, 613 (1989) (opinion of Kennedy, J.). The requisite elements of Article III standing are well established: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984). The constitutionally mandated standing inquiry is especially important in a case like this one, in which taxpayers seek “to challenge laws of general application where their own injury is not distinct from that suffered in general by other taxpayers or citizens.” ASARCO, supra, at 613 (opinion of Kennedy, J.). This is because “[t]he judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471 (1982). The federal courts are not empowered to seek out and strike down any governmental act that they deem to be repugnant to the Constitution. Rather, federal courts sit “solely, to decide on the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170 (1803), and must “ ‘refrai[n] from passing upon the constitutionality of an act … 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.’ ” Valley Forge, supra, at 474 (quoting Blair v. United States, 250 U. S. 273, 279 (1919)). As we held over 80 years ago, in another case involving the question of taxpayer standing: “We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. The question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act… . 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.” Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447, 488 (1923). B As a general matter, the interest of a federal taxpayer in seeing that Treasury funds are spent in accordance with the Constitution does not give rise to the kind of redressable “personal injury” required for Article III standing. Of course, a taxpayer has standing to challenge the collection of a specific tax assessment as unconstitutional; being forced to pay such a tax causes a real and immediate economic injury to the individual taxpayer. See, e.g., Follett v. Town of McCormick, 321 U. S. 573 (1944) (invalidating tax on preaching on First Amendment grounds). But that is not the interest on which respondents assert standing here. Rather, their claim is that, having paid lawfully collected taxes into the Federal Treasury at some point, they have a continuing, legally cognizable interest in ensuring that those funds are not used by the Government in a way that violates the Constitution. We have consistently held that this type of interest is too generalized and attenuated to support Article III standing. In Frothingham, a federal taxpayer sought to challenge federal appropriations for mothers’ and children’s health, arguing that federal involvement in this area intruded on the rights reserved to the States under the Tenth Amendment and would “increase the burden of future taxation and thereby take [the plaintiff’s] property without due process of law.” 262 U. S., at 486. We concluded that the plaintiff lacked the kind of particularized injury required for Article III standing: “[I]nterest in the moneys of the Treasury … 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. “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.” Id., at 487. Because the interests of the taxpayer are, in essence, the interests of the public-at-large, deciding a constitutional claim based solely on taxpayer standing “would be[,] not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.” Id., at 489; see also Alabama Power Co. v. Ickes, 302 U. S. 464, 478–479 (1938). In Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 433 (1952), we reaffirmed this principle, explaining 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.” We therefore rejected a state taxpayer’s claim of standing to challenge a state law authorizing public school teachers to read from the Bible because “the grievance which [the plaintiff] sought to litigate … is not a direct dollars-and-cents injury but is a religious difference.” Id., at 434. In so doing, we gave effect to the basic constitutional principle that “a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 573–574 (1992).[Footnote 2] C In Flast, the Court carved out a narrow exception to the general constitutional prohibition against taxpayer standing. The taxpayer-plaintiff in that case challenged the distribution of federal funds to religious schools under the Elementary and Secondary Education Act of 1965, alleging that such aid violated the Establishment Clause. The Court set out a two-part test for determining whether a federal taxpayer has standing to challenge an allegedly unconstitutional expenditure: “First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, 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. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute… . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, §8.” Flast, 392 U. S., at 102–103. The Court held that the taxpayer-plaintiff in Flast had satisfied both prongs of this test: The plaintiff’s “constitutional challenge [was] made to an exercise by Congress of its power under Art. I, §8, to spend for the general welfare,” and she alleged a violation of the Establishment Clause, which “operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, §8.” Id., at 103–104. III A Respondents argue that this case falls within the Flast exception, which they read to cover any “expenditure of government funds in violation of the Establishment Clause.” Brief for Respondents 12. But this broad reading fails to observe “the rigor with which the Flast exception to the Frothingham principle ought to be applied.” Valley Forge, 454 U. S., at 481. The expenditures at issue in Flast were made pursuant to an express congressional mandate and a specific congressional appropriation. The plaintiff in that case challenged disbursements made under the Elementary and Secondary Education Act of 1965, 79 Stat. 27. That Act expressly appropriated the sum of $100 million for fiscal year 1966, §201(b), id., at 36, and authorized the disbursement of those funds to local educational agencies for the education of low-income students, see Flast, supra, at 86. The Act mandated that local educational agencies receiving such funds “ma[k]e provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment)” in which students enrolled in private elementary and secondary schools could participate, §2, 79 Stat. 30–31. In addition, recipient agencies were required to ensure that “library resources, textbooks, and other instructional materials” funded through the grants “be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools,” §203(a)(3)(B), id., at 37. The expenditures challenged in Flast, then, were funded by a specific congressional appropriation and were disbursed to private schools (including religiously affiliated schools) pursuant to a direct and unambiguous congressional mandate.[Footnote 3] Indeed, the Flast taxpayer-plaintiff’s constitutional claim was premised on the contention that if the Government’s actions were “ ‘within the authority and intent of the Act, the Act is to that extent unconstitutional and void.’ ” Flast, 392 U. S., at 90. And the judgment reviewed by this Court in Flast solely concerned the question whether “if [the challenged] expenditures are authorized by the Act the statute constitutes a ‘law respecting an establishment of religion’ and law ‘prohibiting the free exercise thereof’ ” under the First Amendment. Flast v. Gardner, 271 F. Supp. 1, 2 (SDNY 1967). Given that the alleged Establishment Clause violation in Flast was funded by a specific congressional appropriation and was undertaken pursuant to an express congressional mandate, the Court concluded that the taxpayer-plaintiffs had established the requisite “logical link between [their taxpayer] status and the type of legislative enactment attacked.” In the Court’s words, “[t]heir constitutional challenge [was] made to an exercise by Congress of its power under Art. I, §8, to spend for the general welfare.” 392 U. S., at 90. But as this Court later noted, Flast “ limited taxpayer standing to challenges directed ‘only [at] exercises of congressional power’ ” under the Taxing and Spending Clause. Valley Forge, 454 U. S., at 479. B The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities.[Footnote 4] These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action. We have never found taxpayer standing under such circumstances. In Valley Forge, we held that a taxpayer lacked standing to challenge “a decision by [the federal Department of Health, Education and Welfare] to transfer a parcel of federal property” to a religious college because this transfer was “not a congressional action.” 454 U. S., at 479. In fact, the connection to congressional action was closer in Valley Forge than it is here, because in that case, the “particular Executive Branch action” being challenged was at least “arguably authorized” by the Federal Property and Administrative Services Act of 1949, which permitted federal agencies to transfer surplus property to private entities. Id., at 479, n. 15. Nevertheless, we found that the plaintiffs lacked standing because Flast “limited taxpayer standing to challenges directed ‘only [at] exercises of congressional power’ ” under the Taxing and Spending Clause. 454 U. S., at 479 (quoting Flast, supra, at 102).[Footnote 5] Similarly, in Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974), the taxpayer-plaintiffs contended that the Incompatibility Clause of Article I prohibited Members of Congress from holding commissions in the Armed Forces Reserve. We held that these plaintiffs lacked standing under Flast 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. This was the case even though the plaintiffs sought to reclaim reservist pay received by those Members—pay that presumably was funded through Congress’ general appropriations for the support of the Armed Forces: “Such relief would follow from the invalidity of Executive action in paying persons who could not lawfully have been reservists, not from the invalidity of the statutes authorizing pay to those who lawfully were Reservists.” Ibid., n. 17. See also United States v. Richardson, 418 U. S. 166, 175 (1974) (denying taxpayers standing to compel publication of accounting for the Central Intelligence Agency because “there is no ‘logical nexus’ between the asserted status of taxpayer and the claimed failure of the Congress to require the Executive to supply a more detailed report of the expenditures of that agency”). Bowen v. Kendrick, 487 U. S. 589 (1988), on which respondents rely heavily, is not to the contrary. In that case, we held that the taxpayer-plaintiffs had standing to mount an as-applied challenge to the Adolescent Family Life Act (AFLA), which authorized federal grants to private community service groups including religious organizations. The Court found “a sufficient nexus between the taxpayer’s standing as a taxpayer and the congressional exercise of taxing and spending power,” notwithstanding the fact that the “the funding authorized by Congress ha[d] flowed through and been administered” by an Executive Branch official. Id., at 620, 619. But the key to that conclusion was the Court’s recognition that AFLA was “at heart a program of disbursement of funds pursuant to Congress’ taxing and spending powers,” and that the plaintiffs’ claims “call[ed] into question how the funds authorized by Congress [were] being disbursed pursuant to the AFLA’s statutory mandate.” Id., at 619–620 (emphasis added). AFLA not only expressly authorized and appropriated specific funds for grant-making, it also expressly contemplated that some of those moneys might go to projects involving religious groups. See id., at 595–596; see also id., at 623 (O’Connor, J., concurring) (noting the “partnership between governmental and religious institutions contemplated by the AFLA”).[Footnote 6] Unlike this case, Kendrick involved a “program of disbursement of funds pursuant to Congress’ taxing and spending powers” that “Congress had created,” “authorized,” and “mandate[d].” Id., at 619–620. Respondents attempt to paint their lawsuit as a Kendrick-style as-applied challenge, but this effort is unavailing for the simple reason that they can cite no statute whose application they challenge. The best they can do is to point to unspecified, lump-sum “Congressional budget appropriations” for the general use of the Executive Branch—the allocation of which “is a[n] administrative decision traditionally regarded as committed to agency discretion.” Lincoln v. Vigil, 508 U. S. 182, 192 (1993). Characterizing this case as an “as-applied challenge” to these general appropriations statutes would stretch the meaning of that term past its breaking point. It cannot be that every legal challenge to a discretionary Executive Branch action implicates the constitutionality of the underlying congressional appropriation. When a criminal defendant charges that a federal agent carried out an unreasonable search or seizure, we do not view that claim as an as-applied challenge to the constitutionality of the statute appropriating funds for the Federal Bureau of Investigation. Respondents have not established why the discretionary Executive Branch expenditures here, which are similarly funded by no-strings, lump-sum appropriations, should be viewed any differently.[Footnote 7] In short, this case falls outside the “the narrow exception” that Flast “created to the general rule against taxpayer standing established in Frothingham.” Kendrick, supra, at 618. Because the expenditures that respondents challenge were not expressly authorized or mandated by any specific congressional enactment, respondents’ lawsuit is not directed at an exercise of congressional power, see Valley Forge, 454 U. S., at 479, and thus lacks the requisite “logical nexus” between taxpayer status “and the type of legislative enactment attacked.” Flast, 392 U. S., at 102. IV A 1 Respondents argue that it is “arbitrary” to distinguish between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion, because “the injury to taxpayers in both situations is the very injury targeted by the Establishment Clause and Flast—the expenditure for the support of religion of funds exacted from taxpayers.” Brief for Respondents 13. The panel majority below agreed, based on its observation that “there is so much that executive officials could do to promote religion in ways forbidden by the establishment clause.” 433 F. 3d, at 995. But Flast focused on congressional action, and we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures. Flast itself distinguished the “incidental expenditure of tax funds in the administration of an essentially regulatory statute,” Flast, supra, at 102, and we have subsequently rejected the view that taxpayer standing “extends to ‘the Government as a whole, regardless of which branch is at work in a particular instance,’ ” Valley Forge, supra, at 484, n. 20. Moreover, we have repeatedly emphasized that the Flast exception has a “narrow application in our precedent,” Cuno, 547 U. S., at ___ (slip op., at 12), that only “slightly lowered” the bar on taxpayer standing, Richardson, 418 U. S., at 173, and that must be applied with “rigor,” Valley Forge, supra, at 481. It is significant that, in the four decades since its creation, the Flast exception has largely been confined to its facts. We have declined to lower the taxpayer standing bar in suits alleging violations of any constitutional provision apart from the Establishment Clause. See Tilton v. Richardson, 403 U. S. 672 (1971) (no taxpayer standing to sue under Free Exercise Clause of First Amendment); Richardson, 418 U. S., at 175 (no taxpayer standing to sue under Statement and Account Clause of Art. I); Schlesinger, 418 U. S., at 228 (no taxpayer standing to sue under Incompatibility Clause of Art. I); Cuno, supra, at ___ (slip op., at 13) (no taxpayer standing to sue under Commerce Clause). We have similarly refused to extend Flast to permit taxpayer standing for Establishment Clause challenges that do not implicate Congress’ taxing and spending power. See Valley Forge, supra, at 479–482 (no taxpayer standing to challenge Executive Branch action taken pursuant to Property Clause of Art. IV); see also District of Columbia Common Cause v. District of Columbia, 858 F. 2d 1, 3–4 (CADC 1988); In re United States Catholic Conference, 885 F. 2d 1020, 1028 (CA2 1989). In effect, we have adopted the position set forth by Justice Powell in his concurrence in Richardson and have “limit[ed] the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the results in Flast … .” 418 U. S., at 196. 2 While respondents argue that Executive Branch expenditures in support of religion are no different from legislative extractions, Flast itself rejected this equivalence: “It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute.” 392 U. S., at 102. Because almost all Executive Branch activity is ultimately funded by some congressional appropriation, extending the Flast exception to purely executive expenditures would effectively subject every federal action—be it a conference, proclamation or speech—to Establishment Clause challenge by any taxpayer in federal court. To see the wide swathe of activity that respondents’ proposed rule would cover, one need look no further than the amended complaint in this action, which focuses largely on speeches and presentations made by Executive Branch officials. See, e.g., Amended Complaint ¶32, App. to Pet. for Cert. 73a (challenging Executive Branch officials’ “support of national and regional conferences”); id., ¶33, App. to Pet. for Cert. 73a–75a (challenging content of speech by Secretary of Education); id., ¶¶35, 36, App. to Pet. for Cert. 76a (challenging content of Presidential speeches); id., ¶41, App. to Pet. for Cert. 77a (challenging Executive Branch officials’ “public appearances” and “speeches”). Such a broad reading would ignore the first prong of Flast’s standing test, which requires “a logical link between [taxpayer] status and the type of legislative enactment attacked.” 392 U. S., at 102. It would also raise serious separation-of-powers concerns. As we have recognized, Flast itself gave too little weight to these concerns. By framing the standing question solely in terms of whether the dispute would be presented in an adversary context and in a form traditionally viewed as capable of judicial resolution, Flast “failed to recognize that this doctrine has a separation-of-powers component, which keeps courts within certain traditional bounds vis-À-vis the other branches, concrete adverseness or not.” Lewis v. Casey, 518 U. S. 343, 353, n. 3 (1996); see also Valley Forge, 454 U. S., at 471. Respondents’ position, if adopted, would repeat and compound this mistake. The constitutional requirements for federal-court jurisdiction—including the standing requirements and Article III—“are an essential ingredient of separation and equilibration of powers.” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 101 (1998). “Relaxation of standing requirements is directly related to the expansion of judicial power,” and lowering the taxpayer standing bar to permit challenges of purely executive actions “would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government.” Richardson, 418 U. S., at 188 (Powell, J., concurring). The rule respondents propose would enlist the federal courts to superintend, at the behest of any federal taxpayer, the speeches, statements, and myriad daily activities of the President, his staff, and other Executive Branch officials. This would “be quite at odds with … Flast’s own promise that it would not transform federal courts into forums for taxpayers’ ‘generalized grievances’ ” about the conduct of government, Cuno, 547 U. S., at ___ (slip op., at 12) (quoting Flast, supra, at 106), and would “open the Judiciary to an arguable charge of providing ‘government by injunction,’ ” Schlesinger, 418 U. S., at 222. It would deputize federal courts as “ ‘virtually continuing monitors of the wisdom and soundness of Executive action,’ ” and that, most emphatically, “is not the role of the judiciary.” Allen, 468 U. S., at 760 (quoting Laird v. Tatum, 408 U. S. 1, 15 (1972)). 3 Both the Court of Appeals and respondents implicitly recognize that unqualified federal taxpayer standing to assert Establishment Clause claims would go too far, but neither the Court of Appeals nor respondents has identified a workable limitation. The Court of Appeals, as noted, conceded only that a taxpayer would lack standing where “the marginal or incremental cost to the taxpaying public of the alleged violation of the establishment clause” is “zero.” 433 F. 3d, at 995. Applying this rule, the Court of Appeals opined that a taxpayer would not have standing to challenge a President’s favorable reference to religion in a State of the Union address because the costs associated with the speech “would be no greater merely because the President had mentioned Moses rather than John Stuart Mill.” Ibid. There is reason to question whether the Court of Appeals’ intended for its zero-marginal-cost test to be taken literally, because the court, without any apparent inquiry into the costs of Secretary Paige’s speech, went on to agree that the plaintiffs lacked standing to challenge that speech. Id., at 996. But if we take the Court of Appeals’ test literally—i.e., that any marginal cost greater than zero suffices—taxpayers might well have standing to challenge some (and perhaps many) speeches. As Judge Easterbrook observed: “The total cost of presidential proclamations and speeches by Cabinet officers that touch on religion (Thanksgiving and several other holidays) surely exceeds $500,000 annually; it may cost that much to use Air Force One and send a Secret Service detail to a single speaking engagement.” 447 F. 3d, at 989–990 (concurring in denial of rehearing en banc). At a minimum, the Court of Appeals’ approach (asking whether the marginal cost exceeded zero) would surely create difficult and uncomfortable line-drawing problems. Suppose that it is alleged that a speech writer or other staff member spent extra time doing research for the purpose of including “religious imagery” in a speech. Suppose that a President or a Cabinet officer attends or speaks at a prayer breakfast and that the time spent was time that would have otherwise been spent on secular work. Respondents take a somewhat different approach, contending that their proposed expansion of Flast would be manageable because they would require that a challenged expenditure be “fairly traceable to the conduct alleged to violate the Establishment Clause.” Brief for Respondents 17. Applying this test, they argue, would “scree[n] out … challenge[s to] the content of one particular speech, for example the State of the Union address, as an Establishment Clause violation.” Id., at 21. We find little comfort in this vague and ill-defined test. As an initial matter, respondents fail to explain why the (often substantial) costs that attend, for example, a Presidential address are any less “traceable” than the expenses related to the Executive Branch statements and conferences at issue here. Indeed, respondents concede that even lawsuits involving de minimis amounts of taxpayer money can pass their proposed “traceability” test. Id., at 20, n. 6. Moreover, the “traceability” inquiry, depending on how it is framed, would appear to prove either too little or too much. If the question is whether an allegedly unconstitutional executive action can somehow be traced to taxpayer funds in general, the answer will always be yes: Almost all Executive Branch activities are ultimately funded by some congressional appropriation, whether general or specific, which is in turn financed by tax receipts. If, on the other hand, the question is whether the challenged action can be traced to the contributions of a particular taxpayer-plaintiff, the answer will almost always be no: As we recognized in Frothingham, the interest of any individual taxpayer in a particular federal expenditure “is comparatively minute and indeterminable … and constantly changing.” 262 U. S., at 487. B Respondents set out a parade of horribles that they claim could occur if Flast is not extended to discretionary Executive Branch expenditures. For example, they say, a federal agency could use its discretionary funds to build a house of worship or to hire clergy of one denomination and send them out to spread their faith. Or an agency could use its funds to make bulk purchases of Stars of David, crucifixes, or depictions of the star and crescent for use in its offices or for distribution to the employees or the general public. Of course, none of these things has happened, even though Flast has not previously been expanded in the way that respondents urge. In the unlikely event that any of these executive actions did take place, Congress could quickly step in. And respondents make no effort to show that these improbable abuses could not be challenged in federal court by plaintiffs who would possess standing based on grounds other than taxpayer standing. C Over the years, Flast has been defended by some and criticized by others. But the present case does not require us to reconsider that precedent. The Court of Appeals did not apply Flast; it extended Flast. It is a necessary concomitant of the doctrine of stare decisis that a precedent is not always expanded to the limit of its logic. That was the approach that then-Justice Rehnquist took in his opinion for the Court in Valley Forge, and it is the approach we take here. We do not extend Flast, but we also do not overrule it. We leave Flast as we found it. Justice Scalia says that we must either overrule Flast or extend it to the limits of its logic. His position is not “[in]sane,” inconsistent with the “rule of law,” or “utterly meaningless.” Post, at 1 (opinion concurring in judgment). But it is wrong. Justice Scalia does not seriously dispute either (1) that Flast itself spoke in terms of “legislative enactment[s]” and “exercises of congressional power,” 392 U. S., at 102, or (2) that in the four decades since Flast was decided, we have never extended its narrow exception to a purely discretionary Executive Branch expenditure. We need go no further to decide this case. Relying on the provision of the Constitution that limits our role to resolving the “Cases” and “Controversies” before us, we decide only the case at hand. * * * For these reasons, the judgment of the Court of Appeals for the Seventh Circuit is reversed. It is so ordered. Footnote 1 See, e.g., Exec. Order No. 13198, 3 CFR 750 (2001 Comp.); Exec. Order No. 13280, 3 CFR 262 (2002 Comp.); Exec. Order No. 13342, 3 CFR 180 (2004 Comp.); Exec. Order No. 13397, 71 Fed. Reg. 12275 (2006). Footnote 2 See also DaimlerChrysler Corp. v. Cuno, 547 U. S. ___, ___ (2006) (slip op., at 8) (“Standing has been rejected” where “the alleged injury is not ‘concrete and particularized,’ … but instead a grievance the taxpayer ‘suffers in some indefinite way in common with people generally’ ” (quoting Defenders of Wildlife, 504 U. S., at 560)); ASARCO Inc. v. Kadish, 490 U. S. 605, 616 (1989) (opinion of Kennedy, J.) (“[G]eneralized grievances brought by concerned citizens … are not cognizable in the federal courts”); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 483 (1982) (“[A]ssertion 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”); United States v. Richardson, 418 U. S. 166, 174 (1974) (“[A] taxpayer may not ‘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’ ” (quoting Flast v. Cohen, 392 U. S. 83, 114 (1968) (Stewart, J., concurring); some internal quotation marks omitted); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 217 (1974) (“Respondents seek to have the Judicial Branch compel the Executive Branch to act in conformity with the Incompatibility Clause [of the Constitution], an interest shared by all citizens… . And that claimed nonobservance, standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance, and that is an abstract injury”); Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (“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”). Footnote 3 At around the time the Act was passed and Flast was decided, the great majority of nonpublic elementary and secondary schools in the United States were associated with a church. In 1965–1966, for example, 91.1 percent of all nonpublic elementary schools and 78.2 percent of all nonpublic secondary schools in the United States were religiously affiliated. Dept. of Health, Education, and Welfare, Statistics of Nonpublic Elementary and Secondary Schools 1965–66, p. 7 (1968). Congress surely understood that much of the aid mandated by the statute would find its way to religious schools. Footnote 4 See, e.g., 119 Stat. 2472 (appropriating $53,830,000 “to be available for allocation within the Executive Office of the President”). Footnote 5 Valley Forge also relied on a second rationale: that the authorizing Act was an exercise of Congress’ power under the Property Clause of Art. IV, §3, cl. 2, and not the Taxing and Spending Clause of Art. I, §8. 454 U. S., at 480. But this conclusion merely provided an additional—“and perhaps redundan[t],” ibid.—basis for denying a claim of standing that was already foreclosed because it was not based on any congressional action. Footnote 6 For example, the statute noted that the problems of adolescent premarital sex and pregnancy “are best approached through a variety of integrated and essential services provided to adolescents and their families” by “religious and charitable organizations,” among other groups. 42 U. S. C. §300z(a)(8)(B) (1982 ed.). It went on to mandate that federally provided services in that area should “emphasize the provision of support by other family members, religious and charitable organizations, voluntary associations, and other groups.” §300z(a)(10)(c). And it directed that demonstration projects funded by the government “shall … make use of support systems” such as religious organizations, §300z–2(a), and required grant applicants to describe how they would “involve religious and charitable organizations” in their projects, §300z–5(a)(21)(B). Footnote 7 Nor is it relevant that Congress may have informally “earmarked” portions of its general Executive Branch appropriations to fund the offices and centers whose expenditures are at issue here. See, e.g., H. R. Rep. No. 107–342, p. 108 (2001). “[A] fundamental principle of appropriations law is that where ‘Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions, and indicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on’ the agency.” Lincoln, 508 U. S., at 192 (quoting In re LTV Aerospace Corp., 55 Comp. Gen. 307, 319 (1975)); see also TVA v. Hill, 437 U. S. 153, 191 (1978) (“Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress”).
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550.US.501
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A 1986 amendment to the Internal Revenue Code permits the Treasury Secretary to abate interest that accrues on unpaid federal income taxes if the interest assessment is attributable to Internal Revenue Service (IRS) error or delay. 26 U. S. C. §6404(e)(1). Subsequently, the federal courts uniformly held that the Secretary’s decision not to abate was not subject to judicial review. In 1996, Congress added what is now §6404(h), which states that the Tax Court has “jurisdiction over any action brought by a taxpayer who meets the requirements referred to in section 7430(c)(4)(A)(ii) to determine whether the Secretary’s failure to abate … was an abuse of discretion, and may order an abatement, if such action is brought within 180 days after the date of the mailing of the Secretary’s final determination not to abate … .” §6404(h)(1). Section 7430(c)(4)(A)(ii) in turn incorporates 28 U. S. C. §2412(d)(2)(B), which refers to individuals with a net worth not exceeding $2 million and businesses with a net worth not exceeding $7 million. The IRS denied petitioner Hincks’ request for abatement of interest assessed in 1999 for the period March 21, 1989, to April 1, 1993. The Hincks then filed suit in the Court of Federal Claims seeking review of the refusal to abate. The court granted the Government’s motion to dismiss, and the Federal Circuit affirmed, holding that §6404(h) vests exclusive jurisdiction to review interest abatement claims in the Tax Court. Held: The Tax Court provides the exclusive forum for judicial review of a failure to abate interest under §6404(e)(1). This Court’s analysis is governed by the well-established principle that, in most contexts, “ ‘a precisely drawn, detailed statute pre-empts more general remedies,’ ” EC Term of Years Trust v. United States, 550 U. S. ___, ___; it is also guided by the recognition that when Congress enacts a specific remedy when none was previously recognized, or when previous remedies were “problematic,” the remedy provided is generally regarded as exclusive, Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 285. Section 6404(h) fits the bill on both counts. In a single sentence, it provides a forum for adjudication, a limited class of potential plaintiffs, a statute of limitations, a standard of review, and authorization for judicial relief; it was also enacted against a backdrop of decisions uniformly rejecting the possibility of any review of the Secretary’s §6404(e)(1) determinations. Though Congress failed explicitly to define the Tax Court’s jurisdiction as exclusive, it is quite plain that the terms of §6404(h)—a “precisely drawn, detailed statute” filling a perceived hole in the law—control all requests for review of §6404(e)(1) decisions, including the forum for adjudication. The Hincks correctly argue that Congress’s provision of an abuse of discretion standard removed one of the obstacles courts had held foreclosed judicial review of such determinations, but Congress did not simply supply this single missing ingredient in enacting §6404(h). Rather, it set out a carefully circumscribed, time-limited, plaintiff-specific provision, which also precisely defined the appropriate forum. This Court will not isolate one feature of this statute and use it to permit taxpayers to circumvent the other limiting features in the same statute, such as a shorter statute of limitations than in general refund suits or a net-worth ceiling for plaintiffs eligible to bring suit. Taxpayers could “effortlessly evade” these specific limitations by bringing interest abatement claims as tax refund actions in the district courts or the Court of Federal Claims, disaggregating a statute Congress plainly envisioned as a package deal. EC Term of Years Trust, supra, at ___. Equally unavailing are the Hincks’ contentions that reading §6404(h) to vest exclusive jurisdiction in the Tax Court impliedly repeals the pre-existing jurisdiction of the district courts and Court of Federal Claims, runs contrary to the structure of tax controversy jurisdiction, and would lead to the “unreasonable” result that taxpayers with net worths exceeding the specified ceilings would be foreclosed from seeking judicial review of §6404(e)(1) refusals to abate. Pp. 6–9. 446 F. 3d 1307, affirmed. Roberts, C. J., delivered the opinion for a unanimous Court.
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Bad things happen if you fail to pay federal income taxes when due. One of them is that interest accrues on the unpaid amount. Sometimes it takes a while for the Internal Revenue Service (IRS) to determine that taxes should have been paid that were not. Section 6404(e)(1) of the Internal Revenue Code permits the Secretary of the Treasury to abate interest—to forgive it, partially or in whole—if the assessment of interest on a deficiency is attributable to unreasonable error or delay on the part of the IRS. Section 6404(h) allows for judicial review of the Secretary’s decision not to grant such relief. The question presented in this case is whether this review may be obtained only in the Tax Court, or may also be secured in the district courts and the Court of Federal Claims. We hold that the Tax Court provides the exclusive forum for judicial review of a refusal to abate interest under §6404(e)(1), and affirm. I The Internal Revenue Code provides that if any amount of assessed federal income tax is not paid “on or before the last date prescribed for payment,” interest “shall be paid for the period from such last date to the date paid.” 26 U. S. C. §6601(a). Section 6404 of the Code authorizes the Secretary of the Treasury to abate any tax or related liability in certain circumstances. As part of the Tax Reform Act of 1986, Congress amended §6404 to add subsection (e)(1), which, as enacted, provided in pertinent part: “In the case of any assessment of interest on … any deficiency attributable in whole or in part to any error or delay by an officer or employee of the Internal Revenue Service (acting in his official capacity) in performing a ministerial act … the Secretary may abate the assessment of all or any part of such interest for any period.” 26 U. S. C. §6404(e)(1) (1994 ed.). In the years following passage of §6404(e)(1), the federal courts uniformly held that the Secretary’s decision not to grant an abatement was not subject to judicial review. See, e.g., Argabright v. United States, 35 F. 3d 472, 476 (CA9 1994); Selman v. United States, 941 F. 2d 1060, 1064 (CA10 1991); Horton Homes, Inc. v. United States, 936 F. 2d 548, 554 (CA11 1991); see also Bax v. Commissioner, 13 F. 3d 54, 58 (CA2 1993). These decisions recognized that §6404(e)(1) gave the Secretary complete discretion to determine whether to abate interest, “neither indicat[ing] that such authority should be used universally nor provid[ing] any basis for distinguishing between the instances in which abatement should and should not be granted.” Selman, supra, at 1063. Any decision by the Secretary was accordingly “committed to agency discretion by law” under the Administrative Procedure Act, 5 U. S. C. §701(a)(2), and thereby insulated from judicial review. See, e.g., Webster v. Doe, 486 U. S. 592, 599 (1988); Heckler v. Chaney, 470 U. S. 821, 830 (1985). In 1996, as part of the Taxpayer Bill of Rights 2, Congress again amended §6404, adding what is now subsection (h). As relevant, that provision states: “Review of denial of request for abatement of interest.— “(1) In general.—The Tax Court shall have jurisdiction over any action brought by a taxpayer who meets the requirements referred to in section 7430(c)(4)(A)(ii) to determine whether the Secretary’s failure to abate interest under this section was an abuse of discretion, and may order an abatement, if such action is brought within 180 days after the date of the mailing of the Secretary’s final determination not to abate such interest.” 26 U. S. C. §6404(h)(1) (2000 ed., Supp. IV). Section 7430(c)(4)(A)(ii) in turn incorporates 28 U. S. C. §2412(d)(2)(B), which refers to individuals with a net worth not exceeding $2 million and businesses with a net worth not exceeding $7 million. Congress made subsection (h) effective for all requests for abatement submitted to the IRS after July 30, 1996, regardless of the tax year involved. §302(b), 110 Stat. 1458.[Footnote 1] II In 1986, petitioner John Hinck was a limited partner in an entity called Agri-Cal Venture Associates (ACVA). Along with his wife, petitioner Pamela Hinck, Hinck filed a joint return for 1986 reporting his share of losses from the partnership. The IRS later examined the tax returns for ACVA and proposed adjustments to deductions that the partnership had claimed for 1984, 1985, and 1986. In 1990, the IRS issued a final notice regarding the partnership’s returns, disallowing tens of millions of dollars of deductions. While the partnership sought administrative review of this decision, the Hincks, in May 1996, made an advance remittance of $93,890 to the IRS toward any personal deficiency that might result from a final adjustment of ACVA’s returns. In March 1999, the Hincks reached a settlement with the IRS concerning the ACVA partnership adjustments, to the extent they affected the Hincks’ return. Shortly thereafter, as a result of the adjustments, the IRS imposed additional liability against the Hincks: $16,409 in tax and $21,669.22 in interest. The IRS applied the Hincks’ advance remittance to this amount and refunded them the balance of $55,811.78. The Hincks filed a claim with the IRS contending that, because of IRS errors and delays, the interest assessed against them for the period from March 21, 1989, to April 1, 1993, should be abated under §6404(e)(1). The IRS denied the request. The Hincks then filed suit in the United States Court of Federal Claims seeking review of the refusal to abate. That court granted the Government’s motion to dismiss, 64 Fed. Cl. 71, 81 (2005), and the United States Court of Appeals for the Federal Circuit affirmed, 446 F. 3d 1307, 1313–1314 (2006), holding that §6404(h) vests exclusive jurisdiction to review interest abatement claims under §6404(e)(1) in the Tax Court. Because this decision conflicted with the Fifth Circuit’s decision in Beall v. United States, 336 F. 3d 419, 430 (2003) (holding that §6404(h) grants concurrent rather than exclusive jurisdiction to the Tax Court), we granted certiorari, 549 U. S. ___ (2007). III Our analysis is governed by the well-established principle that, in most contexts, “ ‘a precisely drawn, detailed statute pre-empts more general remedies.’ ” EC Term of Years Trust v. United States, 550 U. S. ___, ___ (2007) (slip op., at 4) (quoting Brown v. GSA, 425 U. S. 820, 834 (1976)); see also Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U. S. 273, 284–286 (1983). We are also guided by our past recognition that when Congress enacts a specific remedy when no remedy was previously recognized, or when previous remedies were “problematic,” the remedy provided is generally regarded as exclusive. Id., at 285; Brown, supra, at 826–829. Section 6404(h) fits the bill on both counts. It is a “precisely drawn, detailed statute” that, in a single sentence, provides a forum for adjudication, a limited class of potential plaintiffs, a statute of limitations, a standard of review, and authorization for judicial relief. And Congress enacted this provision against a backdrop of decisions uniformly rejecting the possibility of any review for taxpayers wishing to challenge the Secretary’s §6404(e)(1) determination. Therefore, despite Congress’s failure explicitly to define the Tax Court’s jurisdiction as exclusive, we think it quite plain that the terms of §6404(h)—a “precisely drawn, detailed statute” filling a perceived hole in the law—control all requests for review of §6404(e)(1) determinations. Those terms include the forum for adjudication. The Hincks’ primary argument against exclusive Tax Court jurisdiction is that by providing a standard of review—abuse of discretion—in §6404(h), Congress eliminated the primary barrier to judicial review that courts had previously recognized; accordingly, they maintain, taxpayers may seek review of §6404(e)(1) determinations under statutes granting jurisdiction to the district courts and the Court of Federal Claims to review tax refund actions. See 28 U. S. C. §§1346(a)(1), 1491(a)(1); 26 U. S. C. §7422(a). Or, as the Fifth Circuit reasoned: “[T]he federal district courts have always possessed jurisdiction over challenges brought to section 6404(e)(1) denials[;] they simply determined that the taxpayers had no substantive right whatever to a favorable exercise of the Secretary’s discretion … . [I]n enacting section 6404(h), Congress indicated that such is no longer the case, and thereby removed any impediment to district court review.” Beall, supra, at 428 (emphasis in original). It is true that by providing an abuse of discretion standard, Congress removed one of the obstacles courts had held foreclosed judicial review of §6404(e)(1) determinations. See, e.g., Argabright, 35 F. 3d, at 476 (noting an absence of “ ‘judicially manageable standards’ ” (quoting Heckler, 470 U. S., at 830)). But in enacting §6404(h), Congress did not simply supply this single missing ingredient; rather, it set out a carefully circumscribed, time-limited, plaintiff-specific provision, which also precisely defined the appropriate forum. We cannot accept the Hincks’ invitation to isolate one feature of this “precisely drawn, detailed statute”—the portion specifying a standard of review—and use it to permit taxpayers to circumvent the other limiting features Congress placed in the same statute—restrictions such as a shorter statute of limitations than general refund suits, compare §6404(h) (180-day limitations period) with §6532(a)(1) (2-year limitations period), or a net-worth ceiling for plaintiffs eligible to bring suit. Taxpayers could “effortlessly evade” these specific limitations by bringing interest abatement claims as tax refund actions in the district courts or the Court of Federal Claims, disaggregating a statute Congress plainly envisioned as a package deal. EC Term of Years Trust, supra, at ___ (slip op., at 5); see also Block, supra, at 284–285; Brown, supra, 425 U. S., at 832–833. The Hincks’ other contentions are equally unavailing. First, they claim that reading §6404(h) to vest exclusive jurisdiction in the Tax Court impliedly repeals the pre-existing jurisdiction of the district courts and Court of Federal Claims, despite our admonition that “repeals by implication are not favored.” Morton v. Mancari, 417 U. S. 535, 549 (1974) (internal quotation marks omitted). But the implied-repeal doctrine is not applicable here, for when Congress passed §6404(h), §6404(e)(1) had been interpreted not to provide any right of review for taxpayers. There is thus no indication of any “language on the statute books that [Congress] wishe[d] to change,” United States v. Fausto, 484 U. S. 439, 453 (1988), implicitly or explicitly. Congress simply prescribed a limited form of review where none had previously been found to exist. Second, the Hincks assert that vesting jurisdiction over §6404(e)(1) abatement decisions exclusively in the Tax Court runs contrary to the “entire structure of tax controversy jurisdiction,” Brief for Petitioners 30, under which the Tax Court generally hears prepayment challenges to tax liability, see §6213(a), while postpayment actions are brought in the district courts or Court of Federal Claims. In a related vein, the Hincks point out that the Government’s position would force taxpayers seeking postpayment review of their tax liabilities to separate their §6404(e)(1) abatement claims from their refund claims and bring each in a different court. Even assuming, arguendo, that we were inclined to depart from the face of the statute, these arguments are undercut on two fronts. To begin with, by expressly granting to the Tax Court some jurisdiction over §6404(e)(1) decisions, Congress has already broken with the general scheme the Hincks identify. No one doubts that an action seeking review of a §6404(e)(1) determination may be maintained in the Tax Court even if the interest has already been paid, see, e.g., Dadian v. Commissioner, 87 TCM 1344 (2004), ¶2004–121 RIA Memo TC, p. 790–2004; Miller v. Commissioner, 79 TCM 2213 (2000), ¶2000–195 RIA Memo TC, p. 1120–2000, aff’d, 310 F. 3d 640 (CA9 2002), and the Hincks point to no case where the Tax Court has refused to exercise jurisdiction under such circumstances. In addition, an interest abatement claim under §6404(e)(1) involves no questions of substantive tax law, but rather is premised on issues of bureaucratic administration (whether, for example, there was “error or delay” in the performance of a “ministerial” act, §6404(e)(1)(A)). Judicial review of decisions not to abate requires an evaluation of the internal processes of the IRS, not the underlying tax liability of the taxpayer. We find nothing tellingly awkward about channeling such discrete and specialized questions of administrative operations to one particular court, even if in some respects it “may not appear to be efficient” as a policy matter to separate refund and interest abatement claims. 446 F. 3d, at 1316.[Footnote 2] Last, the Hincks contend that Congress would not have intended to vest jurisdiction exclusively in the Tax Court because it would lead to the “unreasonable” result that taxpayers with net worths greater than $2 million (for individuals) or $7 million (for businesses) would be foreclosed from seeking judicial review of §6404(e)(1) refusals to abate. Brief for Petitioners 46; see also Beall, 336 F. 3d, at 430. But we agree with the Federal Circuit that this outcome “was contemplated by Congress.” 446 F. 3d, at 1316. The net-worth limitation in §6404(h) reflects Congress’s judgment that wealthier taxpayers are more likely to be able to pay a deficiency before contesting it, thereby avoiding accrual of interest during their administrative and legal challenges. In contrast, taxpayers with comparatively fewer resources are more likely to contest their assessed deficiency before first paying it, thus exposing themselves to interest charges if their challenge is ultimately unsuccessful. There is nothing “unreasonable” about Congress’s decision to grant the possibility of judicial relief only to those taxpayers most likely to be in need of it.[Footnote 3] The judgment of the United States Court of Appeals for the Federal Circuit is affirmed. It is so ordered. Footnote 1 The Taxpayer Bill of Rights 2 also modified 26 U. S. C. §6404(e)(1)(A) to add the word “unreasonable” before the words “error or delay” and to change “ministerial act” to “ministerial or managerial act.” §301(a), 110 Stat. 1457. These changes, however, only apply to interest accruing on deficiencies for tax years beginning after July 30, 1996, see §301(c), ibid., and thus are not implicated in this case. Footnote 2 We note that the Hincks sought only interest abatement in the Court of Federal Claims, thus failing to implicate the “claim-splitting” and efficiency concerns they condemn. See Brief for Petitioners 49. Footnote 3 The Hincks also argue that the net-worth limitations on §6404(h) review violate the due process rights of those taxpayers who exceed them. The court below did not pass upon this constitutional challenge, nor do we, for as the Hincks concede, the record contains no findings concerning their own net worth, Brief for Petitioners 44, and they offer no reasons to deviate from our general rule that a party “must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties,” Kowalski v. Tesmer, 543 U. S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U. S. 490, 499 (1975); internal quotation marks omitted).
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550.US.192
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Pleading guilty to possessing a firearm after a felony conviction in violation of 18 U. S. C. §922(g)(1), petitioner James admitted to the three prior felony convictions listed in his federal indictment, including a Florida state-law conviction for attempted burglary. The Government argued at sentencing that those convictions subjected James to the 15-year mandatory minimum prison term provided by the Armed Career Criminal Act (ACCA), §924(e), for an armed defendant who has three prior “violent felony” convictions. James objected that his attempted burglary conviction was not for a “violent felony.” The District Court held that it was, and the Eleventh Circuit affirmed. Held: Attempted burglary, as defined by Florida law, is a “violent felony” under ACCA. Pp. 2–20. (a) James’ argument that ACCA’s text and structure categorically exclude attempt offenses is rejected. Pp. 2–7. (i) Section 924(e)(2)(B) defines “violent felony” as “any crime punishable by imprisonment for [more than] one year … that … (i) has as an element the use, attempted use, or threatened use of physical force against … another … or … (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Florida law defined “burglary” when James was convicted as “entering or remaining in a structure … with the intent to commit an offense therein,” Fla. Stat. §810.02(1), and declared: “A person who … does any act toward the commission of [an offense] but fails in the perpetration or … execution thereof, commits the offense of criminal attempt,” §777.04(1). The attempted burglary conviction at issue was punishable by imprisonment exceeding one year. The parties agree that it does not qualify as a “violent felony” under clause (i) of §924(e)(2)(B) or as one of the specific crimes enumerated in clause (ii). For example, it is not “burglary” because it does not meet the definition of “generic burglary” found in Taylor v. United States, 495 U. S. 575, 598: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Thus, the question here is whether attempted burglary, as defined by Florida, falls within clause (ii)’s residual provision for crimes that “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” Pp. 2–3. (ii) ACCA’s text does not exclude attempt offenses from the residual provision’s scope. James’ claim that clause (i)s’ express inclusion of attempts, combined with clause (ii)’s failure to mention them, demonstrates an intent to categorically exclude them from clause (ii) would unduly narrow the residual provision, which does not suggest any intent to exclude attempts that otherwise meet the statutory criteria. See, e.g., Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80. James also argues to no avail that, under the ejusdem generis canon, the residual provision must be read to extend only to completed offenses because the specifically enumerated offenses—burglary, arson, extortion, and explosives crimes—all have that common attribute. Rather, the most relevant common attribute of the enumerated offenses is that, while not technically crimes against the person, they nevertheless create significant risks of bodily injury to others, or of violent confrontation that could lead to such injury. See e.g., Taylor, supra, at 597. The inclusion of the residual provision indicates Congress’ intent that the preceding enumerated offenses not be an exhaustive list. Pp. 3–6. (iii) Nor does the legislative history exclude attempt offenses from ACCA’s residual provision. Whatever weight might ordinarily be given the House’s 1984 rejection of language that would have included attempted robbery and attempted burglary as ACCA predicate offenses, it is not probative here because the 1984 action was not Congress’ last word on the subject. Since clause (ii)’s residual provision was added to ACCA in 1988, Congress’ 1984 rejection of the language including attempt offenses is not dispositive. Pp. 6–7. (b) Attempted burglary, as defined by Florida law, “involves conduct that presents a serious potential risk of physical injury to another” under the residual provision. Under the “categorical approach” it has used for other ACCA offenses, the Court considers whether the offense’s elements are of the type that would justify its inclusion within the residual provision, without inquiring into the particular offender’s specific conduct. See, e.g., Taylor, supra, at 602. Pp. 7–18. (i) On its face, Florida’s attempt statute requires only that a defendant take “any act toward the commission” of burglary. But because the Florida Supreme Court’s Jones decision considerably narrowed the application of this broad language in the context of attempted burglary, requiring an overt act directed toward entering or remaining in a structure, merely preparatory activity posing no real danger of harm to others, e.g., acquiring burglars’ tools or casing a structure, is not enough. Pp. 8–9. (ii) Overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, “presents a serious potential risk of physical injury to another” under the residual provision of clause (ii). The clause’s enumerated offenses provide one baseline from which to measure whether similar conduct satisfies the quoted language. Here, the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses, completed burglary. See Taylor, supra, at 600, n. 9. The main risk of burglary arises not from the simple physical act of wrongfully entering another’s property, but from the possibility that an innocent person might confront the burglar during the crime. Attempted burglary poses the same kind of risk. Indeed, that risk may be even greater than the risk posed by a typical completed burglary. Many completed burglaries do not involve confrontations, but attempted burglaries often do. Every Court of Appeals that has construed an attempted burglary law similar to Florida’s has held that attempted burglary qualifies as a “violent felony.” Support is also found in the U. S. Sentencing Commission’s determination that a predicate “crime of violence” for purposes of the Sentencing Guidelines’ career offender enhancement “include[s] … attempting to commit [an] offens[e].” See Guidelines Manual §4B1.2, comment., n. 1. Pp. 9–13. (iii) Neither ACCA nor Taylor supports James’ argument that, under the categorical approach, attempted burglary cannot be treated as an ACCA predicate offense unless all cases present a risk of physical injury to others. ACCA does not require such certainty, and James’ argument misapprehends Taylor, under which the proper inquiry is not whether every factual offense conceivably covered by a statute necessarily presents a serious potential risk of injury, but whether the conduct encompassed by the offense’s elements, in the ordinary case, presents such a risk. Pp. 13–15. (c) James’ argument that the scope of Florida’s underlying burglary statute itself precludes treating attempted burglary as an ACCA predicate offense is not persuasive. Although the state-law definition of “[d]welling” to include the “curtilage thereof,” Fla. Stat. §810.011(2), takes Florida’s underlying burglary offense outside Taylor’s “generic burglary” definition, 495 U. S., at 598, that is not dispositive because the Government does not argue that James’ conviction constitutes “burglary” under ACCA. Rather, it relies on the residual provision, which—as Taylor recognized—can cover conduct outside the strict definition of, but nevertheless similar to, generic burglary. Id., at 600, n. 9. The Florida Supreme Court’s Hamilton decision construed curtilage narrowly, requiring some form of enclosure for the area surrounding a residence. A burglar illegally attempting to enter the curtilage around a dwelling creates much the same risk of confrontation as one attempting to enter the structure itself. Pp. 18–20. (d) Because the Court is here engaging in statutory interpretation, not judicial factfinding, James’ argument that construing attempted burglary as a violent felony raises Sixth Amendment issues under Apprendi v. New Jersey, 530 U. S. 466, lacks merit. P. 20. 430 F. 3d 1150, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion.
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The Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e), provides that a defendant convicted of possession of a firearm by a convicted felon, in violation of §922(g), is subject to a mandatory sentence of 15 years of imprisonment if the defendant has three prior convictions “for a violent felony or a serious drug offense.” The question before us is whether attempted burglary, as defined by Florida law, is a “violent felony” under ACCA. We hold that it is, and we therefore affirm the judgment of the Court of Appeals. I Petitioner Alphonso James pleaded guilty in federal court to one count of possessing a firearm after being convicted of a felony, in violation of §922(g)(1). In his guilty plea, James admitted to the three prior felony convictions listed in his federal indictment. These included a conviction in Florida state court for attempted burglary of a dwelling, in violation of Florida Statutes §§810.02 and 777.04.[Footnote 1] At sentencing, the Government argued that James was subject to ACCA’s 15-year mandatory minimum term because of his three prior convictions. James objected, arguing that his attempted burglary conviction did not qualify as a “violent felony” under 18 U. S. C. §924(e). The District Court held that attempted burglary is a violent felony, and the Court of Appeals for the Eleventh Circuit affirmed that holding, 430 F. 3d 1150, 1157 (2005). We granted certiorari, 547 U. S. ___ (2006). II A ACCA’s 15-year mandatory minimum applies “[i]n the case of a person who violates section 922(g) of this title [the felon in possession of a firearm provision] and has three prior convictions … for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” §924(e)(1). ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year … that— “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(2)(B). Florida defined the crime of burglary at the time of James’ conviction as follows: “ ‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Fla. Stat. §810.02(1) (1993). Florida’s criminal attempt statute provided: “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt.” §777.04(1). The attempted burglary conviction at issue here was punishable by imprisonment for a term exceeding one year. The parties agree that attempted burglary does not qualify as a “violent felony” under clause (i) of ACCA’s definition because it does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U. S. C. §924(e)(2)(B)(i). Nor does it qualify as one of the specific crimes enumerated in clause (ii). Attempted burglary is not robbery or extortion. It does not involve the use of explosives. And it is not “burglary” because it does not meet the definition of burglary under ACCA that this Court set forth in Taylor v. United States, 495 U. S. 575, 598 (1990): “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” See Fla. Stat. §777.04(1) (crime of attempt under Florida law requires as an element that the defendant “fai[l] in the perpetration or [be] intercepted or prevented in the execution” of the underlying offense). The question before the Court, then, is whether attempted burglary, as defined by Florida law, falls within ACCA’s residual provision for crimes that “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). B Before determining whether the elements of attempted burglary under Florida law qualify under ACCA’s residual provision, we first consider James’ argument that the statute’s text and structure categorically exclude attempt offenses from the scope of the residual provision. We conclude that nothing in the plain language of clause (ii), when read together with the rest of the statute, prohibits attempt offenses from qualifying as ACCA predicates when they involve conduct that presents a serious potential risk of physical injury to another. James first argues that the residual provision of clause (ii) must be read in conjunction with clause (i), which expressly includes in its definition of “violent felony” offenses that have “as an element the … attempted use … of physical force against another.” §924(e)(2)(B)(i) (emphasis added). James thus concludes that Congress’ express inclusion of attempt offenses in clause (i), combined with its failure to mention attempts in clause (ii), demonstrates an intent to categorically exclude attempt offenses from the latter provision. We are not persuaded. James’ reading would unduly narrow clause (ii)’s residual provision, the language of which does not suggest any intent to exclude attempt offenses that otherwise meet the statutory criteria. Clause (i), in contrast, lacks a broad residual provision, thus making it necessary to specify exactly what types of offenses—including attempt offenses—are covered by its language. In short, “the expansive phrasing of” clause (ii) “points directly away from the sort of exclusive specification” that James would read into it. Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80 (2002); see also United States v. Davis, 16 F. 3d 212, 217 (CA7) (rejecting argument that “had Congress wished to include attempted burglary as a §924(e) predicate offense, it would have done so expressly” as “untenable in light of the very existence of the ‘otherwise’ clause, which Congress plainly intended to serve as a catch-all provision”), cert. denied, 513 U. S. 945 (1994). James next invokes the canon of ejusdem generis—that when a general phrase follows a list of specifics, it should be read to include only things of the same type as those specifically enumerated. He argues that the “common attribute” of the offenses specifically enumerated in clause (ii)—burglary, arson, extortion, and crimes involving the use of explosives—is that they are all completed offenses. The residual provision, he contends, should similarly be read to extend only to completed offenses. This argument is unavailing. As an initial matter, the premise on which it depends—that clause (ii)’s specifically enumerated crimes are limited to completed offenses—is false. An unsuccessful attempt to blow up a government building, for example, would qualify as a specifically enumerated predicate offense because it would “involv[e] [the] use of explosives.” See, e.g., §844(f)(1) (making it a crime to “maliciously damag[e] or destro[y], or attemp[t] to damage or destroy, by means of fire or an explosive,” certain property used in or affecting interstate commerce (emphasis added)). In any event, the most relevant common attribute of the enumerated offenses of burglary, arson, extortion, and explosives use is not “completion.” Rather, it is that all of these offenses, while not technically crimes against the person, nevertheless create significant risks of bodily injury or confrontation that might result in bodily injury. As we noted in Taylor, “Congress thought that certain general categories of property crimes—namely burglary, arson, extortion, and the use of explosives—so often presented a risk of injury to persons, or were so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they do not necessarily involve the use or threat of force against a person.” 495 U. S., at 597. See also id., at 588 (noting that Congress singled out burglary because it “often creates the possibility of a violent confrontation”); United States v. Adams, 51 Fed. Appx. 507, 508 (CA6 2002) (arson presents “a serious risk of physical injury to another” because “[n]ot only might the targeted building be occupied,” but also “the fire could harm firefighters and onlookers and could spread to occupied structures”); H. R. Rep. No. 99–849, p. 3 (1986) (purpose of clause (ii) was to “add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person”). Congress’ inclusion of a broad residual provision in clause (ii) indicates that it did not intend the preceding enumerated offenses to be an exhaustive list of the types of crimes that might present a serious risk of injury to others and therefore merit status as a §924(e) predicate offense. Nothing in the statutory language supports the view that Congress intended to limit this category solely to completed offenses. C James also relies on ACCA’s legislative history to buttress his argument that clause (ii) categorically excludes attempt offenses. In the deliberations leading up to ACCA’s adoption in 1984, the House rejected a version of the statute that would have provided enhanced penalties for use of a firearm by persons with two prior convictions for “any robbery or burglary offense, or a conspiracy or attempt to commit such an offense.” S. 52, 98th Cong., 2d Sess., §2 (1984) (emphasis added). The bill that ultimately became law omitted any reference to attempts, and simply defined “violent felony” to include “robbery or burglary, or both.” Armed Career Criminal Act of 1984, §1802, 98 Stat. 2185, repealed in 1986 by Pub. L. 99–308, §104(b), 100 Stat. 459. James argues that Congress’ rejection of this explicit “attempt” language in 1984 evidenced an intent to exclude attempted burglary as a predicate offense. Whatever weight this legislative history might ordinarily have, we do not find it probative here, because the 1984 enactment on which James relies was not Congress’ last word on the subject. In 1986, Congress amended ACCA for the purpose of “ ‘expanding’ the range of predicate offenses.” Taylor, supra, at 584. The 1986 amendments added the more expansive language that is at issue in this case—including clause (ii)’s language defining as violent felonies offenses that are “burglary, arson, extortion, involv[e] use of explosives, or otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” Career Criminals Amendment Act of 1986, §1402(b), 100 Stat. 3207–40, codified at 18 U. S. C. §924(e)(2)(B)(ii). This language is substantially broader than the 1984 provision that it amended. Because both the Government and the Court of Appeals relied on the broader language of the 1986 amendments—specifically, the residual provision—as the textual basis for including attempted burglary within the law’s scope, Congress’ rejection of express language including attempt offenses in the 1984 provision is not dispositive. Congress did not consider, much less reject, any such language when it enacted the 1986 amendments. What it did consider, and ultimately adopted, was a broadly worded residual clause that does not by its terms exclude attempt offenses, and whose reach is broad enough to encompass at least some such offenses. III Having concluded that neither the statutory text nor the legislative history discloses any congressional intent to categorically exclude attempt offenses from the scope of §924(e)(2)(B)(ii)’s residual provision, we next ask whether attempted burglary, as defined by Florida law, is an offense that “involves conduct that presents a serious potential risk of physical injury to another.” In answering this question, we employ the “ ‘categorical approach’ ” that this Court has taken with respect to other offenses under ACCA. Under this approach, we “ ‘look only to the fact of conviction and the statutory definition of the prior offense,’ ” and do not generally consider the “particular facts disclosed by the record of conviction.” Shepard v. United States, 544 U. S. 13, 17 (2005) (quoting Taylor, 495 U. S., at 602). That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender. A We begin by examining what constitutes attempted burglary under Florida law. On its face, Florida’s attempt statute requires only that a defendant take “any act toward the commission” of burglary. Fla. Stat. §777.04(1). James contends that this broad statutory language sweeps in merely preparatory activity that poses no real danger of harm to others—for example, acquiring burglars’ tools or casing a structure while planning a burglary. But while the statutory language is broad, the Florida Supreme Court has considerably narrowed its application in the context of attempted burglary, requiring an “overt act directed toward entering or remaining in a structure or conveyance.” Jones v. State, 608 So. 2d 797, 799 (1992). Mere preparation is not enough. See ibid.[Footnote 2] Florida’s lower courts appear to have consistently applied this heightened standard. See, e.g., Richardson v. State, 922 So. 2d 331, 334 (App. 2006); Davis v. State, 741 So. 2d 1213, 1214 (App. 1999). The pivotal question, then, is whether overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, is “conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). B In answering this question, we look to the statutory language for guidance. The specific offenses enumerated in clause (ii) provide one baseline from which to measure whether other similar conduct “otherwise … presents a serious potential risk of physical injury.” In this case, we can ask whether the risk posed by attempted burglary is comparable to that posed by its closest analog among the enumerated offenses—here, completed burglary. See Taylor, supra, at 600, n. 9 (“The Government remains free to argue that any offense—including offenses similar to generic burglary—should count towards enhancement as one that ‘otherwise involves conduct that presents a serious potential risk of physical injury to another’ under §924(e)(2)(B)(ii)”). The main risk of burglary arises not from the simple physical act of wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party—whether an occupant, a police officer, or a bystander—who comes to investigate. That is, the risk arises not from the completion of the burglary, but from the possibility that an innocent person might appear while the crime is in progress. Attempted burglary poses the same kind of risk. Interrupting an intruder at the doorstep while the would-be burglar is attempting a break-in creates a risk of violent confrontation comparable to that posed by finding him inside the structure itself. As one court has explained: “In all of these cases the risk of injury arises, not from the completion of the break-in, but rather from the possibility that some innocent party may appear on the scene while the break-in is occurring. This is just as likely to happen before the defendant succeeds in breaking in as after. Indeed, the possibility may be at its peak while the defendant is still outside trying to break in, as that is when he is likely to be making noise and exposed to the public view… . [T]here is a serious risk of confrontation while a perpetrator is attempting to enter the building.” United States v. Payne, 966 F. 2d 4, 8 (CA1 1992). Indeed, the risk posed by an attempted burglary that can serve as the basis for an ACCA enhancement may be even greater than that posed by a typical completed burglary. All burglaries begin as attempted burglaries. But ACCA only concerns that subset of attempted burglaries where the offender has been apprehended, prosecuted, and convicted. This will typically occur when the attempt is thwarted by some outside intervenor—be it a property owner or law enforcement officer. Many completed burglaries do not involve such confrontations. But attempted burglaries often do; indeed, it is often just such outside intervention that prevents the attempt from ripening into completion. Concluding that attempted burglary presents a risk that is comparable to the risk posed by the completed offense, every Court of Appeals that has construed an attempted burglary law similar in scope to Florida’s has held that the offense qualifies as a “violent felony” under clause (ii)’s residual provision.[Footnote 3] The only cases holding to the contrary involved attempt laws that could be satisfied by preparatory conduct that does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally.[Footnote 4] Given that Florida law, as interpreted by that State’s highest court, requires an overt act directed toward the entry of a structure, we need not consider whether the more attenuated conduct encompassed by such laws presents a potential risk of serious injury under ACCA. The United States Sentencing Commission has come to a similar conclusion with regard to the Sentencing Guidelines’ career offender enhancement, whose definition of a predicate “crime of violence” closely tracks ACCA’s definition of “violent felony.” See United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). The Commission has determined that “crime[s] of violence” for the purpose of the Guidelines enhancement “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” §4B1.2, comment., n. 1. This judgment was based on the Commission’s review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses. As then-Judge Breyer explained, “[t]he Commission, which collects detailed sentencing data on virtually every federal criminal case, is better able than any individual court to make an informed judgment about the relation between” a particular offense and “the likelihood of accompanying violence.” United States v. Doe, 960 F. 2d 221, 225 (CA1 1992); see also USSG §1A3 (Nov. 1987), reprinted in §1A1.1 comment. (Nov. 2006) (describing empirical basis of Commission’s formulation of Guidelines); United States v. Chambers, 473 F. 3d 724 (CA7 2007) (noting the usefulness of empirical analysis from the Commission in determining whether an unenumerated crime poses a risk of violence). While we are not bound by the Sentencing Commission’s conclusion, we view it as further evidence that a crime like attempted burglary poses a risk of violence similar to that presented by the completed offense. C James responds that it is not enough that attempted burglary “ ‘generally’ ” or in “ ‘most cases’ ” will create a risk of physical injury to others. Brief for Petitioner 32. Citing the categorical approach we employed in Taylor, he argues that we cannot treat attempted burglary as an ACCA predicate offense unless all cases present such a risk. James’ approach is supported by neither the statute’s text nor this Court’s holding in Taylor. One could, of course, imagine a situation in which attempted burglary might not pose a realistic risk of confrontation or injury to anyone—for example, a break-in of an unoccupied structure located far off the beaten path and away from any potential intervenors. But ACCA does not require metaphysical certainty. Rather, §924(e)(2)(B)(ii)’s residual provision speaks in terms of a “potential risk.” These are inherently probabilistic concepts.[Footnote 5] Indeed, the combination of the two terms suggests that Congress intended to encompass possibilities even more contingent or remote than a simple “risk,” much less a certainty. While there may be some attempted burglaries that do not present a serious potential risk of physical injury to another, the same is true of completed burglaries—which are explicitly covered by the statutory language and provide a baseline against which to measure the degree of risk that a non-enumerated offense must “otherwise” present in order to qualify. James’ argument also misapprehends Taylor’s categorical approach. We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. Cf. Gonzales v. Duenas-Alvarez, 549 U. S. ___, ___ (2007) (slip op., at 9) (“[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime”). Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. One can always hypothesize unusual cases in which even a prototypically violent crime might not present a genuine risk of injury—for example, an attempted murder where the gun, unbeknownst to the shooter, had no bullets, see United States v. Thomas, 361 F. 3d 653, 659 (CADC 2004). Or, to take an example from the offenses specifically enumerated in §924(e)(2)(B)(ii), one could imagine an extortion scheme where an anonymous blackmailer threatens to release embarrassing personal information about the victim unless he is mailed regular payments. In both cases, the risk of physical injury to another approaches zero. But that does not mean that the offenses of attempted murder or extortion are categorically nonviolent. As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of §924(e)(2)(B)(ii)’s residual provision. Attempted burglary under Florida law—as construed in Jones to require an overt act directed toward entry of a structure—satisfies this test. D Justice Scalia’s dissent criticizes our approach on the ground that it does not provide sufficient guidance for lower courts required to decide whether unenumerated offenses other than attempted burglary qualify as violent felonies under ACCA. But the dissent’s alternative approach has more serious disadvantages. Among other things, that approach unnecessarily decides an important question that the parties have not briefed (the meaning of the term “extortion” in §924(e)(2)(B)(ii)), decides that question in a way that is hardly free from doubt, and fails to provide an interpretation of the residual provision that furnishes clear guidance for future cases. The dissent interprets the residual provision to require at least as much risk as the least dangerous enumerated offense. But the ordinary meaning of the language of the residual clause does not impose such a requirement. What the clause demands is “a serious potential risk of physical injury to another.” While it may be reasonable to infer that the risks presented by the enumerated offenses involve a risk of this magnitude, it does not follow that an offense that presents a lesser risk necessarily fails to qualify. Nothing in the language of §924(e)(2)(B)(ii) rules out the possibility that an offense may present “a serious risk of physical injury to another” without presenting as great a risk as any of the enumerated offenses. Moreover, even if an unenumerated offense could not qualify without presenting at least as much risk as the least risky of the enumerated offenses, it would not be necessary to identify the least risky of those offenses in order to decide this case. Rather, it would be sufficient to establish simply that the unenumerated offense presented at least as much risk as one of the enumerated offenses. Thus, Justice Scalia’s interpretation of the meaning of the term “extortion” is unnecessary—and inadvisable. The parties have not briefed this issue, and the proposed interpretation is hardly beyond question. Instead of interpreting the meaning of the term “extortion” in accordance with its meaning at common law or in modern federal and state statutes, see Taylor, 495 U. S., at 598, it is suggested that we adopt an interpretation that seems to be entirely novel and that greatly reduces the reach of ACCA. The stated reason for tackling this question is to provide guidance for the lower courts in future cases—surely a worthy objective. But in practical terms, the proposed interpretation of the residual clause would not make it much easier for the lower courts to decide whether other unenumerated offenses qualify. Without hard statistics—and no such statistics have been called to our attention—how is a lower court to determine whether the risk posed by generic burglary is greater or less than the risk posed by an entirely unrelated unenumerated offense—say, escape from prison? [Footnote 6] In the end, Justice Scalia’s analysis of this case turns on the same question as ours—i.e., the comparative risks presented by burglary and attempted burglary. The risk of physical injury in both cases occurs when there is a confrontation between the criminal and another person, whether an occupant of the structure, a law enforcement officer or security guard, or someone else. It is argued that when such an encounter occurs during a consummated burglary (i.e., after entry), the risk is greater than it is when the encounter occurs during an attempted burglary (i.e., before entry is effected), and that may be true. But this argument fails to come to grips with the fact that such encounters may occur much more frequently during attempted burglaries because it is precisely due to such encounters that many planned burglaries do not progress beyond the attempt stage. Justice Scalia dismisses the danger involved when an encounter occur during attempted burglaries, stating that such encounters are “likely to consist of nothing more than the occupant’s yelling, ‘Who’s there?’ from his window, and the burglar’s running away.” Post, at 13. But there are many other possible scenarios. An armed would-be burglar may be spotted by a police officer, a private security guard, or a participant in a neighborhood watch program. Or a homeowner angered by the sort of conduct recited in James’ presentence report—throwing a hammer through a window—may give chase, and a violent encounter may ensue. For these reasons and the reasons discussed above, we are convinced that the offense of attempted burglary, as defined by Florida law, qualifies under ACCA’s residual clause. IV Although the question on which this Court granted certiorari focused on the attempt prong of Florida’s attempted burglary law, James also argues that the scope of the State’s underlying burglary statute itself precludes treating attempted burglary as a violent felony for ACCA purposes. Specifically, he argues that Florida’s burglary statute differs from “generic” burglary as defined in Taylor, supra, at 598, because it defines a “ ‘[d]welling’ ” to include not only the structure itself, but also the “curtilage thereof,”[Footnote 7] Fla. Stat. §810.011(2) (1993). We agree that the inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of “generic burglary” set forth in Taylor, which requires an unlawful entry into, or remaining in, “a building or other structure.” 495 U. S., at 598 (emphasis added). But that conclusion is not dispositive, because the Government does not argue that James’ conviction for attempted burglary constitutes “burglary” under §924(e)(2)(B)(ii). Rather, it relies on the residual provision of that clause, which—as the Court has recognized—can cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary. Id., at 600, n. 9. Is the risk posed by an attempted entry of the curtilage comparable to that posed by the attempted entry of a structure (which, as we concluded above, is sufficient to qualify under the residual provision)? We must again turn to state law in order to answer this question. The Florida Supreme Court has construed curtilage narrowly, requiring “some form of an enclosure in order for the area surrounding a residence to be considered part of the ‘curtilage’ as referred to in the burglary statute.” State v. Hamilton, 660 So. 2d 1038, 1044 (1995) (holding that a yard surrounded by trees was not “curtilage”); see also United States v. Matthews, 466 F. 3d 1271, 1274 (CA11 2006) (“Florida case law construes curtilage narrowly, to include only an enclosed area surrounding a structure”). Given this narrow definition, we do not believe that the inclusion of curtilage so mitigates the risk presented by attempted burglary as to take the offense outside the scope of clause (ii)’s residual provision. A typical reason for enclosing the curtilage adjacent to a structure is to keep out unwanted visitors—especially those with criminal motives. And a burglar who illegally attempts to enter the enclosed area surrounding a dwelling creates much the same risk of physical confrontation with a property owner, law enforcement official, or other third party as does one who attempts to enter the structure itself. In light of Florida’s narrow definition of curtilage, attempted burglary of the curtilage requires both physical proximity to the structure and an overt act directed toward breaching the enclosure. Such an attempt “presents a serious potential risk that violence will ensue and someone will be injured.” Id., at 1275 (holding that burglary of the curtilage is a violent felony under ACCA’s residual provision). V Finally, James argues that construing attempted burglary as a violent felony raises Sixth Amendment issues under Apprendi v. New Jersey, 530 U. S. 466 (2000), and its progeny because it is based on “judicial fact finding” about the risk presented by “the acts that underlie ‘most’ convictions for attempted burglary.” Brief for Petitioner 34, 35. This argument is without merit. In determining whether attempted burglary under Florida law qualifies as a violent felony under §924(e)(2)(B)(ii), the Court is engaging in statutory interpretation, not judicial factfinding. Indeed, by applying Taylor’s categorical approach, we have avoided any inquiry into the underlying facts of James’ particular offense, and have looked solely to the elements of attempted burglary as defined by Florida law. Such analysis raises no Sixth Amendment issue.[Footnote 8] * * * For these reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Footnote 1 James’ two other prior convictions—for possession of cocaine and trafficking in cocaine—were determined to be “serious drug offense[s]” under ACCA, see 18 U. S. C. §924(e)(1), and are not at issue here. Footnote 2 The Jones court distinguished its earlier holding in Thomas v. State, 531 So. 2d 708 (1988). There, the State Supreme Court upheld a conviction under a state statute criminalizing the possession of burglary tools, Fla. Stat. §810.06, where the defendant had been arrested after jumping a fence and trying to run away from police while carrying a screwdriver. Jones held that “the overt act necessary to convict of the burglary tool crime is not the same as the overt act required to prove attempted burglary,” and noted that the conduct charged in Thomas would not be sufficient to prove attempted burglary because the defendant in that case committed no overt act directed toward entering or remaining in a building. 608 So. 2d, at 799. Footnote 3 See United States v. Lane, 909 F. 2d 895, 903 (CA6 1990) (construing Ohio attempted burglary law: “ ‘ The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.’… The fact that [the defendant] did not complete the burglary offense does not diminish the serious potential risk of injury to another arising from an attempted burglary”); United States v. Fish, 928 F. 2d 185, 188 (CA6 1991) (Michigan attempted burglary law); United States v. Payne, 966 F. 2d 4, 8 (CA1 1992) (Massachusetts attempted-breaking-and-entering law); United States v. O’Brien, 972 F. 2d 47, 52 (CA3 1992) (Massachusetts attempted-breaking-and-entering law: “[T]he possibility of a violent confrontation with an innocent party is always present when a perpetrator attempts to enter a building illegally, even when the crime is not actually completed”); United States v. Solomon, 998 F. 2d 587, 590 (CA8 1993) (Minnesota attempted burglary law); United States v. Custis, 988 F. 2d 1355, 1364 (CA4 1993) (Maryland attempted-breaking-and-entering law: “In most cases, attempted breaking and entering will be charged when a defendant has been interrupted in the course of illegally entering a home. Interrupting an intruder while breaking into a home involves a risk of confrontation nearly as great as finding him inside the house”); United States v. Thomas, 2 F. 3d 79, 80 (CA4 1993) (New Jersey attempted burglary law); United States v. Andrello, 9 F. 3d 247, 249–250 (CA2 1993) (New York attempted burglary law); United States v. Davis, 16 F. 3d 212, 218 (CA7 1994) (Illinois attempted burglary law); United States v. Bureau, 52 F. 3d 584, 593 (CA6 1995) (Tennessee attempted burglary law: “[T]he propensity for a violent confrontation and the serious potential risk of injury inherent in burglary is not diminished where the burglar is not successful in completing the crime. The potential risk of injury is especially great where the burglar succeeds in entry or near-entry despite not fully committing the crime”); United States v. Demint, 74 F. 3d 876, 878 (CA8 1996) (Florida attempted burglary law); United States v. Collins, 150 F. 3d 668, 671 (CA7 1998) (Wisconsin attempted burglary law: “We have already recognized the inherently dangerous situation and possibility of confrontation that is created when a burglar attempts to illegally enter a building or residence… . Wisconsin’s requirement that a defendant must attempt to enter a building before he can be found guilty of attempted burglary is sufficient to mandate that attempted burglary in Wisconsin constitute a violent felony”). Footnote 4 In United States v. Strahl, 958 F. 2d 980, 986 (1992), the Tenth Circuit held that attempted burglary under Utah law did not qualify as an ACCA predicate offense because a conviction could be “based upon conduct such as making a duplicate key, ‘casing’ the targeted building, obtaining floor plans of a structure, or possessing burglary tools.” United States v. Permenter, 969 F. 2d 911, 913 (CA10 1992), similarly excluded a conviction under an Oklahoma statute that could be satisfied by the defendant’s “merely ‘casing’ the targeted structure.” In United States v. Martinez, 954 F. 2d 1050, 1054 (1992), the Fifth Circuit came to the same conclusion as to a Texas attempted burglary statute that did not require that the defendant be “in the vicinity of any building.” And in United States v. Weekley, 24 F. 3d 1125, 1127 (CA9 1994), the Court of Appeals concluded that ACCA was not satisfied by a conviction under a Washington law that covered “relatively unrisky” conduct such as casing the neighborhood, selecting a house to burgle, and possessing neckties to be used in the burglary. Footnote 5 See, e.g., Black’s Law Dictionary 1188 (7th ed. 1999) (potential: “[c]apable of coming into being; possible”); id., at 1328 (risk: “[t]he chance of injury, damage or loss; danger or hazard”); Webster’s Third New International Dictionary 1775 (1971) (potential: “existing in possibility: having the capacity or a strong possibility for development into a state of actuality”); id., at 1961 (risk: “the possibility of loss, injury, disadvantage, or destruction”). Footnote 6 While ACCA requires judges to make sometimes difficult evaluations of the risks posed by different offenses, we are not persuaded by Justice Scalia’s suggestion—which was not pressed by James or his amici—that the residual provision is unconstitutionally vague. See post, at 17. The statutory requirement that an unenumerated crime “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another” is not so indefinite as to prevent an ordinary person from understanding what conduct it prohibits. See Kolender v. Lawson, 461 U. S. 352, 357 (1983). Similar formulations have been used in other federal and state criminal statutes. See, e.g., 18 U. S. C. §2332b(a)(1)(B) (defining “terrorist act” as conduct that, among other things, “creates a substantial risk of serious bodily injury to any other person”); Ariz. Rev. Stat. Ann. §13–2508(A)(2) (West 2001) (offense of resisting arrest requires preventing an officer from effectuating an arrest by “any … means creating a substantial risk of causing physical injury to the peace officer or another”); Cal. Health & Safety Code Ann. §42400.3(b) (West 2006) (criminalizing air pollution that “results in any unreasonable risk of great bodily injury to, or death of, any person”); N. Y. Penal Law Ann. §490.47 (West Supp. 2007) (“[c]riminal use of a chemical weapon or biological weapon” requires “a grave risk of death or serious physical injury to another person not a participant in the crime”). Footnote 7 Burglary under Florida law differs from “generic” burglary in a second respect: It extends not just to entries of structures, but also of “conveyance[s].” Fla. Stat. §810.02(1). But because James (in accordance with what appears to be the general practice in Florida) was specifically charged with and convicted of “attempted burglary of a dwelling,” we need not examine this point further. Footnote 8 To the extent that James contends that the simple fact of his prior conviction was required to be found by a jury, his position is baseless. James admitted the fact of his prior conviction in his guilty plea, and in any case, we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes. Almendarez-Torres v. United States, 523 U. S. 224 (1998).
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549.US.199
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The Prison Litigation Reform Act of 1995 (PLRA), in order to address the large number of prisoner complaints filed in federal court, mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 42 U. S. C. §1997e(a). Petitioners, inmates in Michigan prisons, filed grievances using the Michigan Department of Corrections (MDOC) grievance process. After unsuccessfully seeking redress through that process, petitioner Jones filed a 42 U. S. C. §1983 suit against six prison officials. The District Court dismissed on the merits as to four of them and as to two others found that Jones had failed to adequately plead exhaustion in his complaint. Petitioner Williams also filed a §1983 suit after his two MDOC grievances were denied. The District Court found that he had not exhausted his administrative remedies with regard to one of the grievances because he had not identified any of the respondents named in the lawsuit during the grievance process. While the court found Williams’s other claim properly exhausted, it dismissed the entire suit under the Sixth Circuit’s total exhaustion rule for PLRA cases. Petitioner Walton’s §1983 lawsuit also was dismissed under the total exhaustion rule because his MDOC grievance named only one of the six defendants in his lawsuit. The Sixth Circuit affirmed in each case, relying on its procedural rules that require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants identified in the prisoner’s grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Held: The Sixth Circuit’s rules are not required by the PLRA, and crafting and imposing such rules exceeds the proper limits of the judicial role. Pp. 10–24. (a) Failure to exhaust is an affirmative defense under the PLRA, and inmates are not required to specially plead or demonstrate exhaustion in their complaints. There is no question that exhaustion is mandatory under the PLRA, Porter v. Nussle, 534 U. S. 516, 524, but it is less clear whether the prisoner must plead and demonstrate exhaustion in the complaint or the defendant must raise lack of exhaustion as an affirmative defense. Failure to exhaust is better viewed as an affirmative defense. Federal Rule of Civil Procedure 8(a) requires simply a “short and plain statement of the claim” in a complaint, and PLRA claims are typically brought under 42 U. S. C. §1983, which does not require exhaustion at all. The fact that the PLRA dealt extensively with exhaustion, but is silent on the issue whether exhaustion must be pleaded or is an affirmative defense, is strong evidence that the usual practice should be followed, and the practice under the Federal Rules is to regard exhaustion as an affirmative defense, including in the similar statutory scheme governing habeas corpus, Day v. McDonough, 547 U. S. ___, ___. Courts should generally not depart from the Federal Rules’ usual practice based on perceived policy concerns. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163 Those courts that require prisoners to plead and demonstrate exhaustion contend that prisoner complaints must be treated outside of the typical framework if the PLRA’s screening requirement is to function effectively. But the screening requirement does not—explicitly or implicitly—justify deviating from the usual procedural practice beyond the departures specified by the PLRA itself. Although exhaustion was a “centerpiece” of the PLRA, Woodford v. Ngo, 548 U. S. ___, ___, failure to exhaust was notably not added in terms to the enumerated grounds justifying dismissal upon early screening. Section1997e(g)—which allows defendants to waive their right to reply to a prisoner complaint without being deemed to have admitted the complaint’s allegations—shows that when Congress meant to depart from the usual procedural requirements, it did so expressly. Given that the PLRA does not itself require plaintiffs to plead exhaustion, such a result “must be obtained by … amending the Federal Rules, and not by judicial interpretation.” Leatherman, supra, at 168. Pp. 10–16. (b) Exhaustion is not per se inadequate under the PLRA when an individual later sued was not named in the grievance. Nothing in the MDOC policy supports the conclusion that the grievance process was improperly invoked because an individual later named as a defendant was not named at the first step of the process; at the time each grievance was filed here, the MDOC policy did not specifically require a prisoner to name anyone in the grievance. Nor does the PLRA impose such a requirement. The “applicable procedural rules” that a prisoner must properly exhaust, Woodford, supra, at ___, are defined not by the PLRA, but by the prison grievance process itself. As the MDOC’s procedures make no mention of naming particular officials, the Sixth Circuit’s rule imposing such a prerequisite to proper exhaustion is unwarranted. The Circuit’s rule may promote early notice to those who might later be sued, but that has not been thought to be one of the leading purposes of the exhaustion requirement. The court below should determine in the first instance whether petitioners’ grievances otherwise satisfied the exhaustion requirement. Pp. 16–19. (c) The PLRA does not require dismissal of the entire complaint when a prisoner has failed to exhaust some, but not all, of the claims included in the complaint. Respondents argue that had Congress intended courts to dismiss only unexhausted claims while retaining the balance of the lawsuit, it would have used the word “claim” instead of “action” in §1997e(a), which provides that “[n]o action shall be brought” unless administrative procedures are exhausted. That boilerplate language is used in many instances in the Federal Code, and statutory references to an “action” have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the “action” may proceed. If a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad. Respondents note that the total exhaustion requirement in habeas corpus is an exception to this general rule, but a court presented with a mixed habeas petition typically “allow[s] the petitioner to delete the unexhausted claims and to proceed with the exhausted claims,” Rhines v. Weber, 544 U. S. 269, 278, which is the opposite of the rule the Sixth Circuit adopted, and precisely the rule that respondents argue against. Although other PLRA sections distinguish between actions and claims, respondents’ reading of §1997e(a) creates its own inconsistencies, and their policy arguments are also unpersuasive. Pp. 19–23. No. 05–7058, 135 Fed. Appx. 837; No. 05–7142, 136 Fed. Appx. 846 (second judgment) and 859 (first judgment), reversed and remanded. Roberts, C. J., delivered the opinion for a unanimous Court. Together with No. 05–7142, Williams v. Overton et al., and Walton v. Bouchard et al. (see this Court’s Rule 12.4), also on certiorari to the same court.
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In an effort to address the large number of prisoner complaints filed in federal court, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–71, as amended, 42 U. S. C. §1997e et seq. Among other reforms, the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 28 U. S. C. §1915A; 42 U. S. C. §1997e(a). The Sixth Circuit, along with some other lower courts, adopted several procedural rules designed to implement this exhaustion requirement and facilitate early judicial screening. These rules require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such rules. We granted certiorari to resolve the conflict and now conclude that these rules are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role. I Prisoner litigation continues to “account for an outsized share of filings” in federal district courts. Woodford v. Ngo, 548 U. S. ___, ___, n. 4 (2006) (slip op., at 12, n. 4). In 2005, nearly 10 percent of all civil cases filed in federal courts nationwide were prisoner complaints challenging prison conditions or claiming civil rights violations.[Footnote 1] Most of these cases have no merit; many are frivolous. Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law. The challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit. See Neitzke v. Williams, 490 U. S. 319, 327 (1989). Congress addressed that challenge in the PLRA. What this country needs, Congress decided, is fewer and better prisoner suits. See Porter v. Nussle, 534 U. S. 516, 524 (2002) (PLRA intended to “reduce the quantity and improve the quality of prisoner suits”). To that end, Congress enacted a variety of reforms designed to filter out the bad claims and facilitate consideration of the good. Key among these was the requirement that inmates complaining about prison conditions exhaust prison grievance remedies before initiating a lawsuit. The exhaustion provision of the PLRA states: “No action shall be brought with respect to prison conditions under [42 U. S. C. §1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U. S. C. §1997e(a). Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record. Woodford, supra, at ___ (slip op., at 12). In an attempt to implement the exhaustion requirement, some lower courts have imposed procedural rules that have become the subject of varying levels of disagreement among the federal courts of appeals. The first question presented centers on a conflict over whether exhaustion under the PLRA is a pleading requirement the prisoner must satisfy in his complaint or an affirmative defense the defendant must plead and prove.[Footnote 2] The Sixth Circuit, adopting the former view, requires prisoners to attach proof of exhaustion—typically copies of the grievances—to their complaints to avoid dismissal. If no written record of the grievance is available, the inmate must plead with specificity how and when he exhausted the grievance procedures. Knuckles El v. Toombs, 215 F. 3d 640, 642 (2000). The next issue concerns how courts determine whether a prisoner has properly exhausted administrative remedies—specifically, the level of detail required in a grievance to put the prison and individual officials on notice of the claim. The Sixth Circuit requires that a prisoner have identified, in the first step of the grievance process, each individual later named in the lawsuit to properly exhaust administrative remedies. Burton v. Jones, 321 F. 3d 569, 575 (2003). Other circuits have taken varying approaches to this question, see, e.g., Butler v. Adams, 397 F. 3d 1181, 1183 (CA9 2005) (proper exhaustion requires use of the administrative process provided by the State; if that process does not require identification of specific persons, neither does the PLRA); Johnson v. Johnson, 385 F. 3d 503, 522 (CA5 2004) (“[T]he grievance must provide administrators with a fair opportunity under the circumstances to address the problem that will later form the basis of the suit”); Riccardo v. Rausch, 375 F. 3d 521, 524 (CA7 2004) (exhaustion satisfied if grievance “served its function of alerting the state and inviting corrective action”), none going as far as the Sixth Circuit in requiring in every case that the defendants have been named from the beginning of the grievance process. Finally, the circuits are divided over what the PLRA requires when both exhausted and unexhausted claims are included in a complaint.[Footnote 3] Some circuits, including the Sixth Circuit, apply a “total exhaustion” rule, under which no part of the suit may proceed if any single claim in the action is not properly exhausted. See, e.g., Jones Bey v. Johnson, 407 F. 3d 801, 805 (CA6 2005). Among circuits requiring total exhaustion there is further disagreement over what to do if the requirement is not met. Most courts allow the prisoner to amend his complaint to include only exhausted claims, e.g., Kozohorsky v. Harmon, 332 F. 3d 1141, 1144 (CA8 2003), but the Sixth Circuit denies leave to amend, dismisses the action, and requires that it be filed anew with only unexhausted claims, Baxter v. Rose, 305 F. 3d 486, 488 (2002); Jones Bey, supra, at 807. See also McGore v. Wrigglesworth, 114 F. 3d 601, 612 (1997). Other circuits reject total exhaustion altogether, instead dismissing only unexhausted claims and considering the rest on the merits. See, e.g., Ortiz v. McBride, 380 F. 3d 649, 663 (CA2 2004). A Petitioners are inmates in the custody of the Michigan Department of Corrections (MDOC). At the time petitioners filed their grievances, MDOC Policy Directive 03.02.130 (Nov. 1, 2000) set forth the applicable grievance procedures. 1 App. 138–157.[Footnote 4] The policy directive describes what issues are grievable and contains instructions for filing and processing grievances. Inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue. Id., at 147. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process, and submit a completed grievance form within five business days of the attempted oral resolution. Id., at 147, 149–150. The Step I grievance form provided by MDOC (a one-page form on which the inmate fills out identifying information and is given space to describe the complaint) advises inmates to be “brief and concise in describing your grievance issue.” 2 id., at 1. The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent—generally the supervisor of the person being grieved. 1 id., at 150. If the inmate is dissatisfied with the Step I response, he may appeal to Step II by obtaining an appeal form within five business days of the response, and submitting the appeal within five business days of obtaining the form. Id., at 152. The respondent at Step II is designated by the policy, id., at 152–153 (e.g., the regional health administrator for medical care grievances). If still dissatisfied after Step II, the inmate may further appeal to Step III using the same appeal form; the MDOC director is designated as respondent for all Step III appeals. Id., at 154. Lorenzo Jones Petitioner Lorenzo Jones is incarcerated at the MDOC’s Saginaw Correctional Facility. In November 2000, while in MDOC’s custody, Jones was involved in a vehicle accident and suffered significant injuries to his neck and back. Several months later Jones was given a work assignment he allegedly could not perform in light of his injuries. According to Jones, respondent Paul Morrison—in charge of work assignments at the prison—made the inappropriate assignment, even though he knew of Jones’s injuries. When Jones reported to the assignment, he informed the staff member in charge—respondent Michael Opanasenko—that he could not perform the work; Opanasenko allegedly told him to do the work or “ ‘suffer the consequences.’ ” Id., at 20. Jones performed the required tasks and allegedly aggravated his injuries. After unsuccessfully seeking redress through the MDOC’s grievance process, Jones filed a complaint in the Eastern District of Michigan under 42 U. S. C. §1983 for deliberate indifference to medical needs, retaliation, and harassment. Jones named as defendants, in addition to Morrison and Opanasenko, respondents Barbara Bock (the warden), Valerie Chaplin (a deputy warden), Janet Konkle (a registered nurse), and Ahmad Aldabaugh (a physician). A Magistrate recommended dismissal for failure to state a claim with respect to Bock, Chaplin, Konkle, and Aldabaugh, and the District Court agreed. 1 App. 41. With respect to Morrison and Opanasenko, however, the Magistrate recommended that the suit proceed, finding that Jones had exhausted his administrative remedies as to those two. Id., at 18–29. The District Court disagreed. In his complaint, Jones provided the dates on which his claims were filed at various steps of the MDOC grievance procedures. Id., at 41. He did not, however, attach copies of the grievance forms or describe the proceedings with specificity. Respondents attached copies of all of Jones’s grievances to their own motion to dismiss, but the District Judge ruled that Jones’s failure to meet his burden to plead exhaustion in his complaint could not be cured by respondents. Id., at 42. The Sixth Circuit agreed, holding both that Jones failed to comply with the specific pleading requirements applied to PLRA suits, 135 Fed. Appx. 837, 839 (2005) (per curiam) (citing Knuckles El, 215 F. 3d, at 642), and that, even if Jones had shown that he exhausted the claims against Morrison and Opanasenko, dismissal was still required under the total exhaustion rule, 135 Fed. Appx., at 839 (citing Jones Bey, 407 F. 3d, at 806). Timothy Williams Petitioner Timothy Williams is incarcerated at the MDOC’s Adrian Correctional Facility. He suffers from noninvoluting cavernous hemangiomas in his right arm, a medical condition that causes pain, immobility, and disfigurement of the limb, and for which he has undergone several surgeries. An MDOC physician recommended further surgery to provide pain relief, but MDOC’s Correctional Medical Services denied the recommendation (and subsequent appeals by the doctor) on the ground that the danger of surgery outweighed the benefits, which it viewed as cosmetic. The MDOC Medical Services Advisory Committee upheld this decision. After Correctional Medical Services indicated that it would take the request under advisement, Williams filed a grievance objecting to the quality of his medical care and seeking authorization for the surgery. He later filed another grievance complaining that he was denied a single-occupancy handicapped cell, allegedly necessary to accommodate his medical condition. After both grievances were denied at all stages, Williams filed a complaint in the Eastern District of Michigan under §1983, naming as respondents William Overton (former director of MDOC), David Jamrog (the warden), Mary Jo Pass and Paul Klee (assistant deputy wardens), Chad Markwell (corrections officer), Bonnie Peterson (health unit manager), and Dr. George Pramstaller (chief medical officer for MDOC). The District Judge found that Williams had failed to exhaust his administrative remedies with regard to his medical care claim because he had not identified any of the respondents named in his lawsuit during the grievance process.[Footnote 5] Although Williams’s claim concerning the handicapped cell had been properly exhausted, the District Judge—applying the total exhaustion rule—dismissed the entire suit. The Sixth Circuit affirmed. 136 Fed. Appx. 859, 861–863 (2005) (citing Burton, 321 F. 3d, at 574, Curry v. Scott, 249 F. 3d 493, 504–505 (CA6 2001), and Jones Bey, 407 F. 3d, at 805). John Walton Petitioner John Walton is incarcerated at the MDOC’s Alger Maximum Correctional Facility. After assaulting a guard, he was sanctioned with an indefinite “upper slot” restriction.[Footnote 6] Several months later, upon learning that other prisoners had been given upper slot restrictions of only three months for the same infraction, he filed a grievance claiming that this disparity was the result of racial discrimination (Walton is black, the two other prisoners he identified in his grievances are white). After the grievance was denied, Walton filed a complaint in the Western District of Michigan under §1983, claiming race discrimination. He named as respondents Barbara Bouchard (former warden), Ken Gearin, David Bergh, and Ron Bobo (assistant deputy wardens), Catherine Bauman (resident unit manager), and Denise Gerth (assistant resident unit supervisor). The District Judge dismissed the lawsuit because Walton had not named any respondent other than Bobo in his grievance. His claims against the other respondents were thus not properly exhausted, and the court dismissed the entire action under the total exhaustion rule. The Sixth Circuit affirmed, reiterating its requirement that a prisoner must “file a grievance against the person he ultimately seeks to sue,” Curry, supra, at 505, and that this requirement can only be satisfied by naming each defendant at Step I of the MDOC grievance process. Because Walton had exhausted prison remedies only as to respondent Bobo, the Sixth Circuit affirmed the District Court’s dismissal of the entire action. 136 Fed. Appx. 846, 848–849 (2005). B Jones sought review in a petition for certiorari, arguing that the Sixth Circuit’s heightened pleading requirement and total exhaustion rule contravene the clear language of the Federal Rules of Civil Procedure and the PLRA. Williams and Walton filed a joint petition under this Court’s Rule 12.4, contending that the rule requiring every defendant to be named during the grievance process is not required by the PLRA, and also challenging the total exhaustion rule. We granted both petitions for certiorari, 547 U. S. ___ (2006), and consolidated the cases for our review. II There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court. Porter, 534 U. S., at 524. What is less clear is whether it falls to the prisoner to plead and demonstrate exhaustion in the complaint, or to the defendant to raise lack of exhaustion as an affirmative defense. The minority rule, adopted by the Sixth Circuit, places the burden of pleading exhaustion in a case covered by the PLRA on the prisoner; most courts view failure to exhaust as an affirmative defense. See n. 2, supra. We think petitioners, and the majority of courts to consider the question, have the better of the argument. Federal Rule of Civil Procedure 8(a) requires simply a “short and plain statement of the claim” in a complaint, while Rule 8(c) identifies a nonexhaustive list of affirmative defenses that must be pleaded in response. The PLRA itself is not a source of a prisoner’s claim; claims covered by the PLRA are typically brought under 42 U. S. C. §1983, which does not require exhaustion at all, see Patsy v. Board of Regents of Fla., 457 U. S. 496, 516 (1982). Petitioners assert that courts typically regard exhaustion as an affirmative defense in other contexts, see Brief for Petitioners 34–36, and nn. 12–13 (citing cases), and respondents do not seriously dispute the general proposition. We have referred to exhaustion in these terms, see, e.g., Wright v. Universal Maritime Service Corp., 525 U. S. 70, 75 (1998) (referring to “failure to exhaust” as an “affirmative defens[e]”), including in the similar statutory scheme governing habeas corpus, Day v. McDonough, 547 U. S. ___, ___ (2006) (slip op., at 8) (referring to exhaustion as a “defense”). The PLRA dealt extensively with the subject of exhaustion, see 42 U. S. C. §§1997e(a), (c)(2), but is silent on the issue whether exhaustion must be pleaded by the plaintiff or is an affirmative defense. This is strong evidence that the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense. In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns. Thus, in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163 (1993), we unanimously reversed the court of appeals for imposing a heightened pleading standard in §1983 suits against municipalities. We explained that “[p]erhaps if [the] Rules … were rewritten today, claims against municipalities under §1983 might be subjected to the added specificity requirement … . But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Id., at 168. In Swierkiewicz v. Sorema N. A., 534 U. S. 506 (2002), we unanimously reversed the court of appeals for requiring employment discrimination plaintiffs to specifically allege the elements of a prima facie case of discrimination. We explained that “the Federal Rules do not contain a heightened pleading standard for employment discrimination suits,” and a “requirement of greater specificity for particular claims” must be obtained by amending the Federal Rules. Id., at 515 (citing Leatherman). And just last Term, in Hill v. McDonough, 547 U. S. ___ (2006), we unanimously rejected a proposal that §1983 suits challenging a method of execution must identify an acceptable alternative: “Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal courts.” Id., at ___ (slip op., at 8) (citing Swierkiewicz). The Sixth Circuit and other courts requiring prisoners to plead and demonstrate exhaustion in their complaints contend that if the “new regime” mandated by the PLRA for prisoner complaints is to function effectively, prisoner complaints must be treated outside of this typical framework. See Baxter, 305 F. 3d, at 489. These courts explain that the PLRA not only imposed a new mandatory exhaustion requirement, but also departed in a fundamental way from the usual procedural ground rules by requiring judicial screening to filter out nonmeritorious claims: Courts are to screen inmate complaints “before docketing, if feasible, or … as soon as practicable after docketing,” and dismiss the complaint if it is “frivolous, malicious, … fails to state a claim upon which relief may be granted[,] or … seeks monetary relief from a defendant who is immune from such relief.” 28 U. S. C. §§1915A(a), (b). All this may take place before any responsive pleading is filed—unlike in the typical civil case, defendants do not have to respond to a complaint covered by the PLRA until required to do so by the court, and waiving the right to reply does not constitute an admission of the allegations in the complaint. See 42 U. S. C. §1997e(g)(1), (2). According to respondents, these departures from the normal litigation framework of complaint and response mandate a different pleading requirement for prisoner complaints, if the screening is to serve its intended purpose. See, e.g., Baxter, supra, at 489 (“This court’s heightened pleading standards for complaints covered by the PLRA are designed to facilitate the Act’s screening requirements …”); Knuckles El, 215 F. 3d, at 642. See also Brief for Respondents 17. We think that the PLRA’s screening requirement does not—explicitly or implicitly—justify deviating from the usual procedural practice beyond the departures specified by the PLRA itself. Before the PLRA, the in forma pauperis provision of §1915, applicable to most prisoner litigation, permitted sua sponte dismissal only if an action was frivolous or malicious. 28 U. S. C. §1915(d) (1994 ed.); see also Neitzke, 490 U. S., at 320 (concluding that a complaint that fails to state a claim was not frivolous under §1915(d) and thus could not be dismissed sua sponte). In the PLRA, Congress added failure to state a claim and seeking monetary relief from a defendant immune from such relief as grounds for sua sponte dismissal of in forma pauperis cases, §1915(e)(2)(B) (2000 ed.), and provided for judicial screening and sU. S.onte dismissal of prisoner suits on the same four grounds, §1915A(b); 42 U. S. C. §1997e(c)(1). Although exhaustion was a “centerpiece” of the PLRA, Woodford, 548 U. S., at ___ (slip op., at 1–2), failure to exhaust was notably not added in terms to this enumeration. There is thus no reason to suppose that the normal pleading rules have to be altered to facilitate judicial screening of complaints specifically for failure to exhaust. Some courts have found that exhaustion is subsumed under the PLRA’s enumerated ground authorizing early dismissal for “fail[ure] to state a claim upon which relief may be granted.” 28 U. S. C. §§1915A(b)(1), 1915(e)(2)(B); 42 U. S. C. §1997e(c)(1). See Baxter, supra, at 489; Steele v. Federal Bureau of Prisons, 355 F. 3d 1204, 1210 (CA10 2003); Rivera v. Allin, 144 F. 3d 719, 731 (CA11 1998). The point is a bit of a red herring. A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract. See Leveto v. Lapina, 258 F. 3d 156, 161 (CA3 2001) (“[A] complaint may be subject to dismissal under Rule 12(b)(6) when an affirmative defense … appears on its face” (internal quotation marks omitted)). See also Lopez-Gonzalez v. Municipality of Comerio, 404 F. 3d 548, 551 (CA1 2005) (dismissing a complaint barred by the statute of limitations under Rule 12(b)(6)); Pani v. Empire Blue Cross Blue Shield, 152 F. 3d 67, 74–75 (CA2 1998) (dismissing a complaint barred by official immunity under Rule 12(b)(6)). See also 5B C. Wright & A. Miller, Federal Practice and Procedure §1357, pp. 708–710, 721–729 (3d ed. 2004). Determining that Congress meant to include failure to exhaust under the rubric of “failure to state a claim” in the screening provisions of the PLRA would thus not support treating exhaustion as a pleading requirement rather than an affirmative defense. The argument that screening would be more effective if exhaustion had to be shown in the complaint proves too much; the same could be said with respect to any affirmative defense. The rejoinder that the PLRA focused on exhaustion rather than other defenses simply highlights the failure of Congress to include exhaustion in terms among the enumerated grounds justifying dismissal upon early screening. As noted, that is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim. It is to say that there is no basis for concluding that Congress implicitly meant to transform exhaustion from an affirmative defense to a pleading requirement by the curiously indirect route of specifying that courts should screen PLRA complaints and dismiss those that fail to state a claim. Respondents point to 42 U. S. C. §1997e(g) as confirming that the usual pleading rules should not apply to PLRA suits, but we think that provision supports petitioners. It specifies that defendants can waive their right to reply to a prisoner complaint without the usual consequence of being deemed to have admitted the allegations in the complaint. See §1997e(g)(1) (allowing defendants to waive their response without admitting the allegations “[n]otwithstanding any other law or rule of procedure”). This shows that when Congress meant to depart from the usual procedural requirements, it did so expressly. We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints. We understand the reasons behind the decisions of some lower courts to impose a pleading requirement on plaintiffs in this context, but that effort cannot fairly be viewed as an interpretation of the PLRA. “Whatever temptations the statesmanship of policy-making might wisely suggest,” the judge’s job is to construe the statute—not to make it better. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 533 (1947). The judge “must not read in by way of creation,” but instead abide by the “duty of restraint, th[e] humility of function as merely the translator of another’s command.” Id., at 533–534. See United States v. Goldenberg, 168 U. S. 95, 103 (1897) (“No mere omission … which it may seem wise to have specifically provided for, justif[ies] any judicial addition to the language of the statute”). Given that the PLRA does not itself require plaintiffs to plead exhaustion, such a result “must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Leatherman, 507 U. S., at 168. III The Sixth Circuit threw out the Williams and Walton suits because those prisoners had not identified in their initial grievances each defendant they later sued. 136 Fed. Appx., at 862–863; id., at 848–849. See Burton, 321 F. 3d, at 575.[Footnote 7] Here again the lower court’s procedural rule lacks a textual basis in the PLRA. The PLRA requires exhaustion of “such administrative remedies as are available,” 42 U. S. C. §1997e(a), but nothing in the statute imposes a “name all defendants” requirement along the lines of the Sixth Circuit’s judicially created rule. Respondents argue that without such a rule the exhaustion requirement would become a “ ‘useless appendage,’ ” Brief for Respondents 44 (quoting Woodford, 548 U. S., at ___ (slip op., at 11)), but the assertion is hyperbole, and the citation of Woodford misplaced. Woodford held that “proper exhaustion” was required under the PLRA, and that this requirement was not satisfied when grievances were dismissed because prisoners had missed deadlines set by the grievance policy. Id., at ___ (slip op., at 11–13). At the time each of the grievances at issue here was filed, in contrast, the MDOC policy did not contain any provision specifying who must be named in a grievance. MDOC’s policy required only that prisoners “be as specific as possible” in their grievances, 1 App. 148, while at the same time the required forms advised them to “[b]e brief and concise.” 2 id., at 1. The MDOC grievance form does not require a prisoner to identify a particular responsible party, and the respondent is not necessarily the allegedly culpable prison official, but rather an administrative official designated in the policy to respond to particular types of grievances at different levels. Supra, at 6. The grievance policy specifically provides that the grievant at Step I “shall have the opportunity to explain the grievance more completely at [an] interview, enabling the Step I respondent to gather any additional information needed to respond to the grievance.” 1 App. 151. Nothing in the MDOC policy itself supports the conclusion that the grievance process was improperly invoked simply because an individual later named as a defendant was not named at the first step of the grievance process. Nor does the PLRA impose such a requirement. In Woodford, we held that to properly exhaust administrative remedies prisoners must “complete the administrative review process in accordance with the applicable procedural rules,” 548 U. S., at __ (slip op., at 5)—rules that are defined not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to “properly exhaust.” The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion. As the MDOC’s procedures make no mention of naming particular officials, the Sixth Circuit’s rule imposing such a prerequisite to proper exhaustion is unwarranted. We have identified the benefits of exhaustion to include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record. See id., at ___ (slip op., at 6–8); Porter, 534 U. S., at 524–525. The Sixth Circuit rule may promote early notice to those who might later be sued, but that has not been thought to be one of the leading purposes of the exhaustion requirement. See Johnson, 385 F. 3d, at 522 (“We are mindful that the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued; the grievance is not a summons and complaint that initiates adversarial litigation”); see also Brief for American Civil Liberties Union et al. as Amici Curiae 8–9, and n. 6 (collecting grievance procedures and noting that the majority do not require prisoners to identify specific individuals). We do not determine whether the grievances filed by petitioners satisfied the requirement of “proper exhaustion,” Woodford, supra, at ___ (slip op., at 11), but simply conclude that exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances. We leave it to the court below in the first instance to determine the sufficiency of the exhaustion in these cases. IV The final issue concerns how courts should address complaints in which the prisoner has failed to exhaust some, but not all, of the claims asserted in the complaint.[Footnote 8] All agree that no unexhausted claim may be considered. The issue is whether the court should proceed with the exhausted claims, or instead—as the Sixth Circuit has held—dismiss the entire action if any one claim is not properly exhausted. See Jones Bey, 407 F. 3d, at 807.[Footnote 9] Here the Sixth Circuit can point to language in the PLRA in support of its rule. Section 1997e(a) provides that “[n]o action shall be brought” unless administrative procedures are exhausted. Respondents argue that if Congress intended courts to dismiss only unexhausted claims while retaining the balance of the lawsuit, the word “claim” rather than “action” would have been used in this provision. This statutory phrasing—“no action shall be brought”—is boilerplate language. There are many instances in the Federal Code where similar language is used, but such language has not been thought to lead to the dismissal of an entire action if a single claim fails to meet the pertinent standards. Statutes of limitations, for example, are often introduced by a variant of the phrase “no action shall be brought,” see, e.g., Beach v. Ocwen Fed. Bank, 523 U. S. 410, 416 (1998); 18 U. S. C. §1030(g) (2000 ed., Supp. IV), but we have never heard of an entire complaint being thrown out simply because one of several discrete claims was barred by the statute of limitations, and it is hard to imagine what purpose such a rule would serve. The same is true with respect to other uses of the “no action shall be brought” phrasing. See, e.g., Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F. 3d 461, 471 (CA3 1997) (dismissing only claims that fail to comply with the citizen suit notification requirement of 16 U. S. C. §1540(g)(2), which states that “[n]o action may be commenced” until an agency has declined to act after being given written notice). More generally, statutory references to an “action” have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the “action” may proceed. See, e.g., Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 560–563 (2005) (District Court had jurisdiction over a “civil action” under 28 U. S. C. §1367(a), even if it might not have jurisdiction over each separate claim comprising the action); Chicago v. International College of Surgeons, 522 U. S. 156, 166 (1997) (District Court had jurisdiction over removed “civil action” even if every claim did not satisfy jurisdictional prerequisites). As a general matter, if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad. “[O]nly the bad claims are dismissed; the complaint as a whole is not. If Congress meant to depart from this norm, we would expect some indication of that, and we find none.” Robinson v. Page, 170 F. 3d 747, 748–749 (CA7 1999) (considering §1997e(e)). Respondents note an exception to this general rule, the total exhaustion rule in habeas corpus. In Rose v. Lundy, 455 U. S. 509, 522 (1982), we held that “mixed” habeas petitions—containing both exhausted and unexhausted claims—cannot be adjudicated. This total exhaustion rule applied in habeas was initially derived from considerations of “comity and federalism,” not any statutory command. Rhines v. Weber, 544 U. S. 269, 273 (2005); id., at 274 (noting that Congress “preserved Lundy’s total exhaustion requirement” in 28 U. S. C. §2254(b)(1)(A)). Separate claims in a single habeas petition generally seek the same relief from custody, and success on one is often as good as success on another. In such a case it makes sense to require exhaustion of all claims in state court before allowing the federal action to proceed. A typical PLRA suit with multiple claims, on the other hand, may combine a wide variety of discrete complaints, about interactions with guards, prison conditions, generally applicable rules, and so on, seeking different relief on each claim. There is no reason failure to exhaust on one necessarily affects any other. In any event, even if the habeas total exhaustion rule is pertinent, it does not in fact depart from the usual practice—as we recently held, a court presented with a mixed habeas petition “should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims … .” Rhines, supra, at 278. This is the opposite of the rule the Sixth Circuit adopted, and precisely the rule that respondents argue against. Respondents’ reading of 42 U. S. C. §1997e(a) to contain a total exhaustion rule is bolstered by the fact that other sections of the PLRA distinguish between actions and claims. Section 1997e(c)(1), for example, provides that a court shall dismiss an action for one of four enumerated deficiencies, while §1997e(c)(2) allows a court to dismiss a claim for one of these reasons without first determining whether the claim is exhausted. Similarly, 28 U. S. C. §1915A(b) directs district courts to dismiss “the complaint, or any portion of the complaint” before docketing under certain circumstances. This demonstrates that Congress knew how to differentiate between the entire action and particular claims when it wanted to, and suggests that its use of “action” rather than “claim” in 42 U. S. C. §1997e(a) should be given effect. But the interpretation respondents advocate creates its own inconsistencies. Section 1997e(e) contains similar language, “[n]o … action may be brought … for mental or emotional injury suffered while in custody without a prior showing of physical injury,” yet respondents cite no case interpreting this provision to require dismissal of the entire lawsuit if only one claim does not comply, and again we see little reason for such an approach. Accord, Cassidy v. Indiana Dept. of Corrections, 199 F. 3d 374, 376–377 (CA7 2000) (dismissing only the portions of the complaint barred by §1997e(e)); see also Williams v. Ollis, 230 F. 3d 1361 (CA6 2000) (unpublished table decision) (same). Interpreting the phrase “no action shall be brought” to require dismissal of the entire case under §1997e(a) but not §1997e(e) would contravene our normal rules of statutory construction. National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 501–502 (1998). In pressing the total exhaustion argument, respondents also marshal the policy and purpose underlying the PLRA—this time in a supporting rather than lead role. The invigorated exhaustion requirement is a “centerpiece” of the statute, Woodford, 548 U. S., at ___ (slip op., at 1–2), and if the exhaustion requirement of §1997e(a) is not effectuated by a total exhaustion rule, they argue, inmates will have little incentive to ensure that they have exhausted all available administrative remedies before proceeding to court. The PLRA mandated early judicial screening to reduce the burden of prisoner litigation on the courts; a total exhaustion rule allows courts promptly to dismiss an action upon identifying an unexhausted claim. The alternative approach turns judges into editors of prisoner complaints, rather than creating an incentive for prisoners to exhaust properly. See Ross v. County of Bernalillo, 365 F. 3d 1181, 1190 (CA10 2004). We are not persuaded by these policy arguments. In fact, the effect of a total exhaustion rule could be that inmates will file various claims in separate suits, to avoid the possibility of an unexhausted claim tainting the others. That would certainly not comport with the purpose of the PLRA to reduce the quantity of inmate suits. Additionally, district judges who delve into a prisoner complaint only to realize it contains an unexhausted claim, requiring dismissal of the entire complaint under the total exhaustion rule, will often have to begin the process all over again when the prisoner refiles. In light of typically short prison grievance time limits, prisoners’ refiled complaints will often be identical to what the district court would have considered had it simply dismissed unexhausted claims as it encountered them and proceeded with the exhausted ones. Perhaps filing fees and concerns about the applicability of the “three strikes” rule, 28 U. S. C. §1915(g), would mitigate these effects, but the debate about consequences is close enough that there is no clear reason to depart from the more typical claim-by-claim approach. * * * We are not insensitive to the challenges faced by the lower federal courts in managing their dockets and attempting to separate, when it comes to prisoner suits, not so much wheat from chaff as needles from haystacks. We once again reiterate, however—as we did unanimously in Leatherman, Swierkiewicz, and Hill—that adopting different and more onerous pleading rules to deal with particular categories of cases should be done through established rulemaking procedures, and not on a case-by-case basis by the courts. The judgments of the United States Court of Appeals for the Sixth Circuit are reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 See Administrative Office of the United States Courts, Judicial Facts and Figures, Tables 4.4, 4.6, http://www.uscourts.gov/ judicialfactsfigures/contents.html (as visited Jan. 17, 2007, and available in Clerk of Court’s case file). That number excludes habeas corpus petitions and motions to vacate a sentence. If these filing are included, prisoner complaints constituted 24 percent of all civil filings in 2005. Footnote 2 Compare Steele v. Federal Bureau of Prisons, 355 F. 3d 1204, 1210 (CA10 2003) (pleading requirement); Brown v. Toombs, 139 F. 3d 1102, 1104 (CA6 1998) (per curiam) (same); Rivera v. Allin, 144 F. 3d 719, 731 (CA11 1998) (same), with Anderson v. XYZ Correctional Health Servs., Inc., 407 F. 3d 674, 681 (CA4 2005) (affirmative defense); Wyatt v. Terhune, 315 F. 3d 1108, 1119 (CA9 2003) (same); Casanova v. Dubois, 304 F. 3d 75, 77, n. 3 (CA1 2002) (same); Ray v. Kertes, 285 F. 3d 287, 295 (CA3 2002) (same); Foulk v. Charrier, 262 F. 3d 687, 697 (CA8 2001) (same); Massey v. Helman, 196 F. 3d 727, 735 (CA7 1999) (same); Jenkins v. Haubert, 179 F. 3d 19, 28–29 (CA2 1999) (same). See also Johnson v. Johnson, 385 F. 3d 503, 516, n. 7 (CA5 2004) (noting the conflict but not deciding the question); Jackson v. District of Columbia, 254 F. 3d 262, 267 (CADC 2001) (treating exhaustion as an affirmative defense). Footnote 3 Compare Jones Bey v. Johnson, 407 F. 3d 801, 805 (CA6 2005) (requiring dismissal of the entire action if one unexhausted claim is present); Ross v. County of Bernalillo, 365 F. 3d 1181, 1189 (CA10 2004) (same); Vazquez v. Ragonese, 142 Fed. Appx. 606, 607 (CA3 2005) (per curiam) (same); Kozohorsky v. Harmon, 332 F. 3d 1141, 1144 (CA8 2003) (same), with Lira v. Herrera, 427 F. 3d 1164, 1175 (CA9 2005) (allowing dismissal of only unexhausted claims); Ortiz v. McBride, 380 F. 3d 649, 663 (CA2 2004) (same); Lewis v. Washington, 300 F. 3d 829, 835 (CA7 2002) (same). See also Johnson, supra, at 523, n. 5 (suggesting that total exhaustion is an open question in the Fifth Circuit). Footnote 4 MDOC has since revised its policy. See Policy Directive 03.02.130 (effective Dec. 19, 2003), App. to Brief for Respondents 1b. The new policy is not at issue in these cases. Footnote 5 Dr. Pramstaller was mentioned at Step III of the grievance process, but was apparently never served with the complaint initiating the lawsuit. The Magistrate stated that even if the claims against Pramstaller had been properly exhausted they nonetheless were subject to dismissal under the total exhaustion rule. 1 App. 86, 101. It also appears that under the Sixth Circuit’s rule requiring a defendant to be named at Step I of the grievance process, the claims against Pramstaller, who was not mentioned until Step III, would not have been exhausted. See supra, at 4; n. 7, infra. Because Pramstaller was never served, he is not a respondent in this Court. Footnote 6 An upper slot restriction limits the inmate to receiving food and paperwork via the lower slot of the cell door. Brief for Respondents 5–6. Presumably, this is less desirable than access through the upper slot; the record does not reveal how effective this particular sanction is in discouraging assaults on staff. Footnote 7 This “name all defendants” rule apparently applies even when a prisoner does not learn the identity of the responsible party until a later step of the grievance process. Upon learning the identity of the responsible party, the prisoner is required to bring an entirely new grievance to properly exhaust. 136 Fed. Appx. 846, 849 (CA6 2005) (“At that point [after he learned, in response to a Step I grievance, that Gearin was responsible for the upper slot restriction], Walton was armed with all of the information that he needed to file a Step I grievance against … Gearin—and a federal complaint against Gearin once the claim had been exhausted—but he simply chose not to follow this route”). At oral argument, Michigan admitted that it did not agree with at least this application of the rule. Tr. of Oral Arg. 44–45. Footnote 8 Although we reverse the Sixth Circuit’s rulings on the substantive exhaustion requirements as to all three petitioners, the question whether a total exhaustion rule is contemplated by the PLRA is not moot. In Jones’s case, the Sixth Circuit ruled in the alternative that total exhaustion required dismissal. 135 Fed. Appx. 837, 839 (CA6 2005) (per curiam) (“[E]ven if Jones had shown he had exhausted some of his claims, the district court properly dismissed the complaint because Jones did not show that he had exhausted all of his claims”). Footnote 9 After we granted certiorari, the Sixth Circuit suggested that the adoption of a total exhaustion rule in that Circuit in Jones Bey ran contrary to previous panel decisions and was therefore not controlling. Spencer v. Bouchard, 449 F. 3d 721, 726 (2006). See also Rule 206(c) (CA6 2006). As total exhaustion was applied in the cases under review, and the Sixth Circuit is not the only court to apply this rule, we do not concern ourselves with this possible intracircuit split.
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550.US.398
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To control a conventional automobile’s speed, the driver depresses or releases the gas pedal, which interacts with the throttle via a cable or other mechanical link. Because the pedal’s position in the footwell normally cannot be adjusted, a driver wishing to be closer or farther from it must either reposition himself in the seat or move the seat, both of which can be imperfect solutions for smaller drivers in cars with deep footwells. This prompted inventors to design and patent pedals that could be adjusted to change their locations. The Asano patent reveals a support structure whereby, when the pedal location is adjusted, one of the pedal’s pivot points stays fixed. Asano is also designed so that the force necessary to depress the pedal is the same regardless of location adjustments. The Redding patent reveals a different, sliding mechanism where both the pedal and the pivot point are adjusted. In newer cars, computer-controlled throttles do not operate through force transferred from the pedal by a mechanical link, but open and close valves in response to electronic signals. For the computer to know what is happening with the pedal, an electronic sensor must translate the mechanical operation into digital data. Inventors had obtained a number of patents for such sensors. The so-called ’936 patent taught that it was preferable to detect the pedal’s position in the pedal mechanism, not in the engine, so the patent disclosed a pedal with an electronic sensor on a pivot point in the pedal assembly. The Smith patent taught that to prevent the wires connecting the sensor to the computer from chafing and wearing out, the sensor should be put on a fixed part of the pedal assembly rather than in or on the pedal’s footpad. Inventors had also patented self-contained modular sensors, which can be taken off the shelf and attached to any mechanical pedal to allow it to function with a computer-controlled throttle. The ’068 patent disclosed one such sensor. Chevrolet also manufactured trucks using modular sensors attached to the pedal support bracket, adjacent to the pedal and engaged with the pivot shaft about which the pedal rotates. Other patents disclose electronic sensors attached to adjustable pedal assemblies. For example, the Rixon patent locates the sensor in the pedal footpad, but is known for wire chafing. After petitioner KSR developed an adjustable pedal system for cars with cable-actuated throttles and obtained its ’976 patent for the design, General Motors Corporation (GMC) chose KSR to supply adjustable pedal systems for trucks using computer-controlled throttles. To make the ’976 pedal compatible with the trucks, KSR added a modular sensor to its design. Respondents (Teleflex) hold the exclusive license for the Engelgau patent, claim 4 of which discloses a position-adjustable pedal assembly with an electronic pedal position sensor attached a fixed pivot point. Despite having denied a similar, broader claim, the U. S. Patent and Trademark Office (PTO) had allowed claim 4 because it included the limitation of a fixed pivot position, which distinguished the design from Redding’s. Asano was neither included among the Engelgau patent’s prior art references nor mentioned in the patent’s prosecution, and the PTO did not have before it an adjustable pedal with a fixed pivot point. After learning of KSR’s design for GMC, Teleflex sued for infringement, asserting that KSR’s pedal system infringed the Engelgau patent’s claim 4. KSR countered that claim 4 was invalid under §103 of the Patent Act, which forbids issuance of a patent when “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 17–18, set out an objective analysis for applying §103: “[T]he scope and content of the prior art are … determined; differences between the prior art and the claims at issue are … ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.” While the sequence of these questions might be reordered in any particular case, the factors define the controlling inquiry. However, seeking to resolve the obviousness question with more uniformity and consistency, the Federal Circuit has employed a “teaching, suggestion, or motivation” (TSM) test, under which a patent claim is only proved obvious if the prior art, the problem’s nature, or the knowledge of a person having ordinary skill in the art reveals some motivation or suggestion to combine the prior art teachings. The District Court granted KSR summary judgment. After reviewing pedal design history, the Engelgau patent’s scope, and the relevant prior art, the court considered claim 4’s validity, applying Graham’s framework to determine whether under summary-judgment standards KSR had demonstrated that claim 4 was obvious. The court found “little difference” between the prior art’s teachings and claim 4: Asano taught everything contained in the claim except using a sensor to detect the pedal’s position and transmit it to a computer controlling the throttle. That additional aspect was revealed in, e.g., the ’068 patent and Chevrolet’s sensors. The court then held that KSR satisfied the TSM test, reasoning (1) the state of the industry would lead inevitably to combinations of electronic sensors and adjustable pedals, (2) Rixon provided the basis for these developments, and (3) Smith taught a solution to Rixon’s chafing problems by positioning the sensor on the pedal’s fixed structure, which could lead to the combination of a pedal like Asano with a pedal position sensor. Reversing, the Federal Circuit ruled the District Court had not applied the TSM test strictly enough, having failed to make findings as to the specific understanding or principle within a skilled artisan’s knowledge that would have motivated one with no knowledge of the invention to attach an electronic control to the Asano assembly’s support bracket. The Court of Appeals held that the District Court’s recourse to the nature of the problem to be solved was insufficient because, unless the prior art references addressed the precise problem that the patentee was trying to solve, the problem would not motivate an inventor to look at those references. The appeals court found that the Asano pedal was designed to ensure that the force required to depress the pedal is the same no matter how the pedal is adjusted, whereas Engelgau sought to provide a simpler, smaller, cheaper adjustable electronic pedal. The Rixon pedal, said the court, suffered from chafing but was not designed to solve that problem and taught nothing helpful to Engelgau’s purpose. Smith, in turn, did not relate to adjustable pedals and did not necessarily go to the issue of motivation to attach the electronic control on the pedal assembly’s support bracket. So interpreted, the court held, the patents would not have led a person of ordinary skill to put a sensor on an Asano-like pedal. That it might have been obvious to try that combination was likewise irrelevant. Finally, the court held that genuine issues of material fact precluded summary judgment. Held: The Federal Circuit addressed the obviousness question in a narrow, rigid manner that is inconsistent with §103 and this Court’s precedents. KSR provided convincing evidence that mounting an available sensor on a fixed pivot point of the Asano pedal was a design step well within the grasp of a person of ordinary skill in the relevant art and that the benefit of doing so would be obvious. Its arguments, and the record, demonstrate that the Engelgau patent’s claim 4 is obvious. Pp. 11–24. 1. Graham provided an expansive and flexible approach to the obviousness question that is inconsistent with the way the Federal Circuit applied its TSM test here. Neither §103’s enactment nor Graham’s analysis disturbed the Court’s earlier instructions concerning the need for caution in granting a patent based on the combination of elements found in the prior art. See Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147, 152. Such a combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results. See, e.g., United States v. Adams, 383 U. S. 39, 50–52. When a work is available in one field, design incentives and other market forces can prompt variations of it, either in the same field or in another. If a person of ordinary skill in the art can implement a predictable variation, and would see the benefit of doing so, §103 likely bars its patentability. Moreover, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond that person’s skill. A court must ask whether the improvement is more than the predictable use of prior-art elements according to their established functions. Following these principles may be difficult if the claimed subject matter involves more than the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for the improvement. To determine whether there was an apparent reason to combine the known elements in the way a patent claims, it will often be necessary to look to interrelated teachings of multiple patents; to the effects of demands known to the design community or present in the marketplace; and to the background knowledge possessed by a person having ordinary skill in the art. To facilitate review, this analysis should be made explicit. But it need not seek out precise teachings directed to the challenged claim’s specific subject matter, for a court can consider the inferences and creative steps a person of ordinary skill in the art would employ. Pp. 11–14. (b) The TSM test captures a helpful insight: A patent composed of several elements is not proved obvious merely by demonstrating that each element was, independently, known in the prior art. Although common sense directs caution as to a patent application claiming as innovation the combination of two known devices according to their established functions, it can be important to identify a reason that would have prompted a person of ordinary skill in the art to combine the elements as the new invention does. Inventions usually rely upon building blocks long since uncovered, and claimed discoveries almost necessarily will be combinations of what, in some sense, is already known. Helpful insights, however, need not become rigid and mandatory formulas. If it is so applied, the TSM test is incompatible with this Court’s precedents. The diversity of inventive pursuits and of modern technology counsels against confining the obviousness analysis by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasizing the importance of published articles and the explicit content of issued patents. In many fields there may be little discussion of obvious techniques or combinations, and market demand, rather than scientific literature, may often drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, for patents combining previously known elements, deprive prior inventions of their value or utility. Since the TSM test was devised, the Federal Circuit doubtless has applied it in accord with these principles in many cases. There is no necessary inconsistency between the test and the Graham analysis. But a court errs where, as here, it transforms general principle into a rigid rule limiting the obviousness inquiry. Pp. 14–15. (c) The flaws in the Federal Circuit’s analysis relate mostly to its narrow conception of the obviousness inquiry consequent in its application of the TSM test. The Circuit first erred in holding that courts and patent examiners should look only to the problem the patentee was trying to solve. Under the correct analysis, any need or problem known in the field and addressed by the patent can provide a reason for combining the elements in the manner claimed. Second, the appeals court erred in assuming that a person of ordinary skill in the art attempting to solve a problem will be led only to those prior art elements designed to solve the same problem. The court wrongly concluded that because Asano’s primary purpose was solving the constant ratio problem, an inventor considering how to put a sensor on an adjustable pedal would have no reason to consider putting it on the Asano pedal. It is common sense that familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle. Regardless of Asano’s primary purpose, it provided an obvious example of an adjustable pedal with a fixed pivot point, and the prior art was replete with patents indicating that such a point was an ideal mount for a sensor. Third, the court erred in concluding that a patent claim cannot be proved obvious merely by showing that the combination of elements was obvious to try. When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. Finally, the court drew the wrong conclusion from the risk of courts and patent examiners falling prey to hindsight bias. Rigid preventative rules that deny recourse to common sense are neither necessary under, nor consistent with, this Court’s case law. Pp. 15–18. 2. Application of the foregoing standards demonstrates that claim 4 is obvious. Pp. 18–23. (a) The Court rejects Teleflex’s argument that the Asano pivot mechanism’s design prevents its combination with a sensor in the manner claim 4 describes. This argument was not raised before the District Court, and it is unclear whether it was raised before the Federal Circuit. Given the significance of the District Court’s finding that combining Asano with a pivot-mounted pedal position sensor fell within claim 4’s scope, it is apparent that Teleflex would have made clearer challenges if it intended to preserve this claim. Its failure to clearly raise the argument, and the appeals court’s silence on the issue, lead this Court to accept the District Court’s conclusion. Pp. 18–20. (b) The District Court correctly concluded that when Engelgau designed the claim 4 subject matter, it was obvious to a person of ordinary skill in the art to combine Asano with a pivot-mounted pedal position sensor. There then was a marketplace creating a strong incentive to convert mechanical pedals to electronic pedals, and the prior art taught a number of methods for doing so. The Federal Circuit considered the issue too narrowly by, in effect, asking whether a pedal designer writing on a blank slate would have chosen both Asano and a modular sensor similar to the ones used in the Chevrolet trucks and disclosed in the ’068 patent. The proper question was whether a pedal designer of ordinary skill in the art, facing the wide range of needs created by developments in the field, would have seen an obvious benefit to upgrading Asano with a sensor. For such a designer starting with Asano, the question was where to attach the sensor. The ’936 patent taught the utility of putting the sensor on the pedal device. Smith, in turn, explained not to put the sensor on the pedal footpad, but instead on the structure. And from Rixon’s known wire-chafing problems, and Smith’s teaching that the pedal assemblies must not precipitate any motion in the connecting wires, the designer would know to place the sensor on a nonmoving part of the pedal structure. The most obvious such point is a pivot point. The designer, accordingly, would follow Smith in mounting the sensor there. Just as it was possible to begin with the objective to upgrade Asano to work with a computer-controlled throttle, so too was it possible to take an adjustable electronic pedal like Rixon and seek an improvement that would avoid the wire-chafing problem. Teleflex has not shown anything in the prior art that taught away from the use of Asano, nor any secondary factors to dislodge the determination that claim 4 is obvious. Pp. 20–23. 3. The Court disagrees with the Federal Circuit’s holding that genuine issues of material fact precluded summary judgment. The ultimate judgment of obviousness is a legal determination. Graham, 383 U. S., at 17. Where, as here, the prior art’s content, the patent claim’s scope, and the level of ordinary skill in the art are not in material dispute and the claim’s obviousness is apparent, summary judgment is appropriate. P. 23. 119 Fed. Appx. 282, reversed and remanded. Kennedy, J., delivered the opinion for a unanimous Court.
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Teleflex Incorporated and its subsidiary Technology Holding Company—both referred to here as Teleflex—sued KSR International Company for patent infringement. The patent at issue, United States Patent No. 6,237,565 B1, is entitled “Adjustable Pedal Assembly With Electronic Throttle Control.” Supplemental App. 1. The patentee is Steven J. Engelgau, and the patent is referred to as “the Engelgau patent.” Teleflex holds the exclusive license to the patent. Claim 4 of the Engelgau patent describes a mechanism for combining an electronic sensor with an adjustable automobile pedal so the pedal’s position can be transmitted to a computer that controls the throttle in the vehicle’s engine. When Teleflex accused KSR of infringing the Engelgau patent by adding an electronic sensor to one of KSR’s previously designed pedals, KSR countered that claim 4 was invalid under the Patent Act, 35 U. S. C. §103, because its subject matter was obvious. Section 103 forbids issuance of a patent when “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” In Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), the Court set out a framework for applying the statutory language of §103, language itself based on the logic of the earlier decision in Hotchkiss v. Greenwood, 11 How. 248 (1851), and its progeny. See 383 U. S., at 15–17. The analysis is objective: “Under §103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.” Id., at 17–18. While the sequence of these questions might be reordered in any particular case, the factors continue to define the inquiry that controls. If a court, or patent examiner, conducts this analysis and concludes the claimed subject matter was obvious, the claim is invalid under §103. Seeking to resolve the question of obviousness with more uniformity and consistency, the Court of Appeals for the Federal Circuit has employed an approach referred to by the parties as the “teaching, suggestion, or motivation” test (TSM test), under which a patent claim is only proved obvious if “some motivation or suggestion to combine the prior art teachings” can be found in the prior art, the nature of the problem, or the knowledge of a person having ordinary skill in the art. See, e.g., Al-Site Corp. v. VSI Int’l, Inc., 174 F. 3d 1308, 1323–1324 (CA Fed. 1999). KSR challenges that test, or at least its application in this case. See 119 Fed. Appx. 282, 286–290 (CA Fed. 2005). Because the Court of Appeals addressed the question of obviousness in a manner contrary to §103 and our precedents, we granted certiorari, 547 U. S.___ (2006). We now reverse. I A In car engines without computer-controlled throttles, the accelerator pedal interacts with the throttle via cable or other mechanical link. The pedal arm acts as a lever rotating around a pivot point. In a cable-actuated throttle control the rotation caused by pushing down the pedal pulls a cable, which in turn pulls open valves in the carburetor or fuel injection unit. The wider the valves open, the more fuel and air are released, causing combustion to increase and the car to accelerate. When the driver takes his foot off the pedal, the opposite occurs as the cable is released and the valves slide closed. In the 1990’s it became more common to install computers in cars to control engine operation. Computer-controlled throttles open and close valves in response to electronic signals, not through force transferred from the pedal by a mechanical link. Constant, delicate adjustments of air and fuel mixture are possible. The computer’s rapid processing of factors beyond the pedal’s position improves fuel efficiency and engine performance. For a computer-controlled throttle to respond to a driver’s operation of the car, the computer must know what is happening with the pedal. A cable or mechanical link does not suffice for this purpose; at some point, an electronic sensor is necessary to translate the mechanical operation into digital data the computer can understand. Before discussing sensors further we turn to the mechanical design of the pedal itself. In the traditional design a pedal can be pushed down or released but cannot have its position in the footwell adjusted by sliding the pedal forward or back. As a result, a driver who wishes to be closer or farther from the pedal must either reposition himself in the driver’s seat or move the seat in some way. In cars with deep footwells these are imperfect solutions for drivers of smaller stature. To solve the problem, inventors, beginning in the 1970’s, designed pedals that could be adjusted to change their location in the footwell. Important for this case are two adjustable pedals disclosed in U. S. Patent Nos. 5,010,782 (filed July 28, 1989) (Asano) and 5,460,061 (filed Sept. 17, 1993) (Redding). The Asano patent reveals a support structure that houses the pedal so that even when the pedal location is adjusted relative to the driver, one of the pedal’s pivot points stays fixed. The pedal is also designed so that the force necessary to push the pedal down is the same regardless of adjustments to its location. The Redding patent reveals a different, sliding mechanism where both the pedal and the pivot point are adjusted. We return to sensors. Well before Engelgau applied for his challenged patent, some inventors had obtained patents involving electronic pedal sensors for computer-controlled throttles. These inventions, such as the device disclosed in U. S. Patent No. 5,241,936 (filed Sept. 9, 1991) (’936), taught that it was preferable to detect the pedal’s position in the pedal assembly, not in the engine. The ’936 patent disclosed a pedal with an electronic sensor on a pivot point in the pedal assembly. U. S. Patent No. 5,063,811 (filed July 9, 1990) (Smith) taught that to prevent the wires connecting the sensor to the computer from chafing and wearing out, and to avoid grime and damage from the driver’s foot, the sensor should be put on a fixed part of the pedal assembly rather than in or on the pedal’s footpad. In addition to patents for pedals with integrated sensors inventors obtained patents for self-contained modular sensors. A modular sensor is designed independently of a given pedal so that it can be taken off the shelf and attached to mechanical pedals of various sorts, enabling the pedals to be used in automobiles with computer-controlled throttles. One such sensor was disclosed in U. S. Patent No. 5,385,068 (filed Dec. 18, 1992) (’068). In 1994, Chevrolet manufactured a line of trucks using modular sensors “attached to the pedal support bracket, adjacent to the pedal and engaged with the pivot shaft about which the pedal rotates in operation.” 298 F. Supp. 2d 581, 589 (ED Mich. 2003). The prior art contained patents involving the placement of sensors on adjustable pedals as well. For example, U. S. Patent No. 5,819,593 (filed Aug. 17, 1995) (Rixon) discloses an adjustable pedal assembly with an electronic sensor for detecting the pedal’s position. In the Rixon pedal the sensor is located in the pedal footpad. The Rixon pedal was known to suffer from wire chafing when the pedal was depressed and released. This short account of pedal and sensor technology leads to the instant case. B KSR, a Canadian company, manufactures and supplies auto parts, including pedal systems. Ford Motor Company hired KSR in 1998 to supply an adjustable pedal system for various lines of automobiles with cable-actuated throttle controls. KSR developed an adjustable mechanical pedal for Ford and obtained U. S. Patent No. 6,151,976 (filed July 16, 1999) (’976) for the design. In 2000, KSR was chosen by General Motors Corporation (GMC or GM) to supply adjustable pedal systems for Chevrolet and GMC light trucks that used engines with computer-controlled throttles. To make the ’976 pedal compatible with the trucks, KSR merely took that design and added a modular sensor. Teleflex is a rival to KSR in the design and manufacture of adjustable pedals. As noted, it is the exclusive licensee of the Engelgau patent. Engelgau filed the patent application on August 22, 2000 as a continuation of a previous application for U. S. Patent No. 6,109,241, which was filed on January 26, 1999. He has sworn he invented the patent’s subject matter on February 14, 1998. The Engelgau patent discloses an adjustable electronic pedal described in the specification as a “simplified vehicle control pedal assembly that is less expensive, and which uses fewer parts and is easier to package within the vehicle.” Engelgau, col. 2, lines 2–5, Supplemental App. 6. Claim 4 of the patent, at issue here, describes: “A vehicle control pedal apparatus comprising: a support adapted to be mounted to a vehicle structure; an adjustable pedal assembly having a pedal arm moveable in for[e] and aft directions with respect to said support; a pivot for pivotally supporting said adjustable pedal assembly with respect to said support and defining a pivot axis; and an electronic control attached to said support for controlling a vehicle system; said apparatus characterized by said electronic control being responsive to said pivot for providing a signal that corresponds to pedal arm position as said pedal arm pivots about said pivot axis between rest and applied positions wherein the position of said pivot remains constant while said pedal arm moves in fore and aft directions with respect to said pivot.” Id., col. 6, lines 17–36, Supplemental App. 8 (diagram numbers omitted). We agree with the District Court that the claim discloses “a position-adjustable pedal assembly with an electronic pedal position sensor attached to the support member of the pedal assembly. Attaching the sensor to the support member allows the sensor to remain in a fixed position while the driver adjusts the pedal.” 298 F. Supp. 2d, at 586–587. Before issuing the Engelgau patent the U. S. Patent and Trademark Office (PTO) rejected one of the patent claims that was similar to, but broader than, the present claim 4. The claim did not include the requirement that the sensor be placed on a fixed pivot point. The PTO concluded the claim was an obvious combination of the prior art disclosed in Redding and Smith, explaining: “ ‘Since the prior ar[t] references are from the field of endeavor, the purpose disclosed … would have been recognized in the pertinent art of Redding. Therefore it would have been obvious … to provide the device of Redding with the … means attached to a support member as taught by Smith.’ ” Id., at 595. In other words Redding provided an example of an adjustable pedal and Smith explained how to mount a sensor on a pedal’s support structure, and the rejected patent claim merely put these two teachings together. Although the broader claim was rejected, claim 4 was later allowed because it included the limitation of a fixed pivot point, which distinguished the design from Redding’s. Ibid. Engelgau had not included Asano among the prior art references, and Asano was not mentioned in the patent’s prosecution. Thus, the PTO did not have before it an adjustable pedal with a fixed pivot point. The patent issued on May 29, 2001 and was assigned to Teleflex. Upon learning of KSR’s design for GM, Teleflex sent a warning letter informing KSR that its proposal would violate the Engelgau patent. “ ‘Teleflex believes that any supplier of a product that combines an adjustable pedal with an electronic throttle control necessarily employs technology covered by one or more’ ” of Teleflex’s patents. Id., at 585. KSR refused to enter a royalty arrangement with Teleflex; so Teleflex sued for infringement, asserting KSR’s pedal infringed the Engelgau patent and two other patents. Ibid. Teleflex later abandoned its claims regarding the other patents and dedicated the patents to the public. The remaining contention was that KSR’s pedal system for GM infringed claim 4 of the Engelgau patent. Teleflex has not argued that the other three claims of the patent are infringed by KSR’s pedal, nor has Teleflex argued that the mechanical adjustable pedal designed by KSR for Ford infringed any of its patents. C The District Court granted summary judgment in KSR’s favor. After reviewing the pertinent history of pedal design, the scope of the Engelgau patent, and the relevant prior art, the court considered the validity of the contested claim. By direction of 35 U. S. C. §282, an issued patent is presumed valid. The District Court applied Graham’s framework to determine whether under summary-judgment standards KSR had overcome the presumption and demonstrated that claim 4 was obvious in light of the prior art in existence when the claimed subject matter was invented. See §102(a). The District Court determined, in light of the expert testimony and the parties’ stipulations, that the level of ordinary skill in pedal design was “ ‘an undergraduate degree in mechanical engineering (or an equivalent amount of industry experience) [and] familiarity with pedal control systems for vehicles.’ ” 298 F. Supp. 2d, at 590. The court then set forth the relevant prior art, including the patents and pedal designs described above. Following Graham’s direction, the court compared the teachings of the prior art to the claims of Engelgau. It found “little difference.” 298 F. Supp. 2d, at 590. Asano taught everything contained in claim 4 except the use of a sensor to detect the pedal’s position and transmit it to the computer controlling the throttle. That additional aspect was revealed in sources such as the ’068 patent and the sensors used by Chevrolet. Under the controlling cases from the Court of Appeals for the Federal Circuit, however, the District Court was not permitted to stop there. The court was required also to apply the TSM test. The District Court held KSR had satisfied the test. It reasoned (1) the state of the industry would lead inevitably to combinations of electronic sensors and adjustable pedals, (2) Rixon provided the basis for these developments, and (3) Smith taught a solution to the wire chafing problems in Rixon, namely locating the sensor on the fixed structure of the pedal. This could lead to the combination of Asano, or a pedal like it, with a pedal position sensor. The conclusion that the Engelgau design was obvious was supported, in the District Court’s view, by the PTO’s rejection of the broader version of claim 4. Had Engelgau included Asano in his patent application, it reasoned, the PTO would have found claim 4 to be an obvious combination of Asano and Smith, as it had found the broader version an obvious combination of Redding and Smith. As a final matter, the District Court held that the secondary factor of Teleflex’s commercial success with pedals based on Engelgau’s design did not alter its conclusion. The District Court granted summary judgment for KSR. With principal reliance on the TSM test, the Court of Appeals reversed. It ruled the District Court had not been strict enough in applying the test, having failed to make “ ‘finding[s] as to the specific understanding or principle within the knowledge of a skilled artisan that would have motivated one with no knowledge of [the] invention’ … to attach an electronic control to the support bracket of the Asano assembly.” 119 Fed. Appx., at 288 (brackets in original) (quoting In re Kotzab, 217 F. 3d 1365, 1371 (CA Fed. 2000)). The Court of Appeals held that the District Court was incorrect that the nature of the problem to be solved satisfied this requirement because unless the “prior art references address[ed] the precise problem that the patentee was trying to solve,” the problem would not motivate an inventor to look at those references. 119 Fed. Appx., at 288. Here, the Court of Appeals found, the Asano pedal was designed to solve the “ ‘constant ratio problem’ ”—that is, to ensure that the force required to depress the pedal is the same no matter how the pedal is adjusted—whereas Engelgau sought to provide a simpler, smaller, cheaper adjustable electronic pedal. Ibid. As for Rixon, the court explained, that pedal suffered from the problem of wire chafing but was not designed to solve it. In the court’s view Rixon did not teach anything helpful to Engelgau’s purpose. Smith, in turn, did not relate to adjustable pedals and did not “necessarily go to the issue of motivation to attach the electronic control on the support bracket of the pedal assembly.” Ibid. When the patents were interpreted in this way, the Court of Appeals held, they would not have led a person of ordinary skill to put a sensor on the sort of pedal described in Asano. That it might have been obvious to try the combination of Asano and a sensor was likewise irrelevant, in the court’s view, because “ ‘ “[o]bvious to try” has long been held not to constitute obviousness.’ ” Id., at 289 (quoting In re Deuel, 51 F. 3d 1552, 1559 (CA Fed. 1995)). The Court of Appeals also faulted the District Court’s consideration of the PTO’s rejection of the broader version of claim 4. The District Court’s role, the Court of Appeals explained, was not to speculate regarding what the PTO might have done had the Engelgau patent mentioned Asano. Rather, the court held, the District Court was obliged first to presume that the issued patent was valid and then to render its own independent judgment of obviousness based on a review of the prior art. The fact that the PTO had rejected the broader version of claim 4, the Court of Appeals said, had no place in that analysis. The Court of Appeals further held that genuine issues of material fact precluded summary judgment. Teleflex had proffered statements from one expert that claim 4 “ ‘was a simple, elegant, and novel combination of features,’ ” 119 Fed. Appx., at 290, compared to Rixon, and from another expert that claim 4 was nonobvious because, unlike in Rixon, the sensor was mounted on the support bracket rather than the pedal itself. This evidence, the court concluded, sufficed to require a trial. II A We begin by rejecting the rigid approach of the Court of Appeals. Throughout this Court’s engagement with the question of obviousness, our cases have set forth an expansive and flexible approach inconsistent with the way the Court of Appeals applied its TSM test here. To be sure, Graham recognized the need for “uniformity and definiteness.” 383 U. S., at 18. Yet the principles laid down in Graham reaffirmed the “functional approach” of Hotchkiss, 11 How. 248. See 383 U. S., at 12. To this end, Graham set forth a broad inquiry and invited courts, where appropriate, to look at any secondary considerations that would prove instructive. Id., at 17. Neither the enactment of §103 nor the analysis in Graham disturbed this Court’s earlier instructions concerning the need for caution in granting a patent based on the combination of elements found in the prior art. For over a half century, the Court has held that a “patent for a combination which only unites old elements with no change in their respective functions . . . obviously withdraws what is already known into the field of its monopoly and diminishes the resources available to skillful men.” Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147, 152 (1950). This is a principal reason for declining to allow patents for what is obvious. The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results. Three cases decided after Graham illustrate the application of this doctrine. In United States v. Adams, 383 U. S. 39, 40 (1966), a companion case to Graham, the Court considered the obviousness of a “wet battery” that varied from prior designs in two ways: It contained water, rather than the acids conventionally employed in storage batteries; and its electrodes were magnesium and cuprous chloride, rather than zinc and silver chloride. The Court recognized that when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result. 383 U. S., at 50–51. It nevertheless rejected the Government’s claim that Adams’s battery was obvious. The Court relied upon the corollary principle that when the prior art teaches away from combining certain known elements, discovery of a successful means of combining them is more likely to be nonobvious. Id., at 51–52. When Adams designed his battery, the prior art warned that risks were involved in using the types of electrodes he employed. The fact that the elements worked together in an unexpected and fruitful manner supported the conclusion that Adams’s design was not obvious to those skilled in the art. In Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U. S. 57 (1969), the Court elaborated on this approach. The subject matter of the patent before the Court was a device combining two pre-existing elements: a radiant-heat burner and a paving machine. The device, the Court concluded, did not create some new synergy: The radiant-heat burner functioned just as a burner was expected to function; and the paving machine did the same. The two in combination did no more than they would in separate, sequential operation. Id., at 60–62. In those circumstances, “while the combination of old elements performed a useful function, it added nothing to the nature and quality of the radiant-heat burner already patented,” and the patent failed under §103. Id., at 62 (footnote omitted). Finally, in Sakraida v. AG Pro, Inc., 425 U. S. 273 (1976), the Court derived from the precedents the conclusion that when a patent “simply arranges old elements with each performing the same function it had been known to perform” and yields no more than one would expect from such an arrangement, the combination is obvious. Id., at 282. The principles underlying these cases are instructive when the question is whether a patent claiming the combination of elements of prior art is obvious. When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, §103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill. Sakraida and Anderson’s-Black Rock are illustrative—a court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. Following these principles may be more difficult in other cases than it is here because the claimed subject matter may involve more than the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for the improvement. Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue. To facilitate review, this analysis should be made explicit. See In re Kahn, 441 F. 3d 977, 988 (CA Fed. 2006) (“[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness”). As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. B When it first established the requirement of demonstrating a teaching, suggestion, or motivation to combine known elements in order to show that the combination is obvious, the Court of Customs and Patent Appeals captured a helpful insight. See Application of Bergel, 292 F. 2d 955, 956–957 (1961). As is clear from cases such as Adams, a patent composed of several elements is not proved obvious merely by demonstrating that each of its elements was, independently, known in the prior art. Although common sense directs one to look with care at a patent application that claims as innovation the combination of two known devices according to their established functions, it can be important to identify a reason that would have prompted a person of ordinary skill in the relevant field to combine the elements in the way the claimed new invention does. This is so because inventions in most, if not all, instances rely upon building blocks long since uncovered, and claimed discoveries almost of necessity will be combinations of what, in some sense, is already known. Helpful insights, however, need not become rigid and mandatory formulas; and when it is so applied, the TSM test is incompatible with our precedents. The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility. In the years since the Court of Customs and Patent Appeals set forth the essence of the TSM test, the Court of Appeals no doubt has applied the test in accord with these principles in many cases. There is no necessary inconsistency between the idea underlying the TSM test and the Graham analysis. But when a court transforms the general principle into a rigid rule that limits the obviousness inquiry, as the Court of Appeals did here, it errs. C The flaws in the analysis of the Court of Appeals relate for the most part to the court’s narrow conception of the obviousness inquiry reflected in its application of the TSM test. In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under §103. One of the ways in which a patent’s subject matter can be proved obvious is by noting that there existed at the time of invention a known problem for which there was an obvious solution encompassed by the patent’s claims. The first error of the Court of Appeals in this case was to foreclose this reasoning by holding that courts and patent examiners should look only to the problem the patentee was trying to solve. 119 Fed. Appx., at 288. The Court of Appeals failed to recognize that the problem motivating the patentee may be only one of many addressed by the patent’s subject matter. The question is not whether the combination was obvious to the patentee but whether the combination was obvious to a person with ordinary skill in the art. Under the correct analysis, any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed. The second error of the Court of Appeals lay in its assumption that a person of ordinary skill attempting to solve a problem will be led only to those elements of prior art designed to solve the same problem. Ibid. The primary purpose of Asano was solving the constant ratio problem; so, the court concluded, an inventor considering how to put a sensor on an adjustable pedal would have no reason to consider putting it on the Asano pedal. Ibid. Common sense teaches, however, that familiar items may have obvious uses beyond their primary purposes, and in many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle. Regardless of Asano’s primary purpose, the design provided an obvious example of an adjustable pedal with a fixed pivot point; and the prior art was replete with patents indicating that a fixed pivot point was an ideal mount for a sensor. The idea that a designer hoping to make an adjustable electronic pedal would ignore Asano because Asano was designed to solve the constant ratio problem makes little sense. A person of ordinary skill is also a person of ordinary creativity, not an automaton. The same constricted analysis led the Court of Appeals to conclude, in error, that a patent claim cannot be proved obvious merely by showing that the combination of elements was “obvious to try.” Id., at 289 (internal quotation marks omitted). When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under §103. The Court of Appeals, finally, drew the wrong conclusion from the risk of courts and patent examiners falling prey to hindsight bias. A factfinder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning. See Graham, 383 U. S., at 36 (warning against a “temptation to read into the prior art the teachings of the invention in issue” and instructing courts to “ ‘guard against slipping into the use of hindsight’ ” (quoting Monroe Auto Equipment Co. v. Heckethorn Mfg. & Supply Co., 332 F. 2d 406, 412 (CA6 1964))). Rigid preventative rules that deny factfinders recourse to common sense, however, are neither necessary under our case law nor consistent with it. We note the Court of Appeals has since elaborated a broader conception of the TSM test than was applied in the instant matter. See, e.g., DyStar Textilfarben GmbH & Co. Deutschland KG v. C. H. Patrick Co., 464 F. 3d 1356, 1367 (2006) (“Our suggestion test is in actuality quite flexible and not only permits, but requires, consideration of common knowledge and common sense”); Alza Corp. v. Mylan Labs., Inc., 464 F. 3d 1286, 1291 (2006) (“There is flexibility in our obviousness jurisprudence because a motivation may be found implicitly in the prior art. We do not have a rigid test that requires an actual teaching to combine . . .”). Those decisions, of course, are not now before us and do not correct the errors of law made by the Court of Appeals in this case. The extent to which they may describe an analysis more consistent with our earlier precedents and our decision here is a matter for the Court of Appeals to consider in its future cases. What we hold is that the fundamental misunderstandings identified above led the Court of Appeals in this case to apply a test inconsistent with our patent law decisions. III When we apply the standards we have explained to the instant facts, claim 4 must be found obvious. We agree with and adopt the District Court’s recitation of the relevant prior art and its determination of the level of ordinary skill in the field. As did the District Court, we see little difference between the teachings of Asano and Smith and the adjustable electronic pedal disclosed in claim 4 of the Engelgau patent. A person having ordinary skill in the art could have combined Asano with a pedal position sensor in a fashion encompassed by claim 4, and would have seen the benefits of doing so. A Teleflex argues in passing that the Asano pedal cannot be combined with a sensor in the manner described by claim 4 because of the design of Asano’s pivot mechanisms. See Brief for Respondents 48–49, and n. 17. Therefore, Teleflex reasons, even if adding a sensor to Asano was obvious, that does not establish that claim 4 encompasses obvious subject matter. This argument was not, however, raised before the District Court. There Teleflex was content to assert only that the problem motivating the invention claimed by the Engelgau patent would not lead to the solution of combining of Asano with a sensor. See Teleflex’s Response to KSR’s Motion for Summary Judgment of Invalidity in No. 02–74586 (ED Mich.), pp. 18–20, App. 144a–146a. It is also unclear whether the current argument was raised before the Court of Appeals, where Teleflex advanced the nonspecific, conclusory contention that combining Asano with a sensor would not satisfy the limitations of claim 4. See Brief for Plaintiffs-Appellants in No. 04–1152 (CA Fed.), pp. 42–44. Teleflex’s own expert declarations, moreover, do not support the point Teleflex now raises. See Declaration of Clark J. Radcliffe, Ph.D., Supplemental App. 204–207; Declaration of Timothy L. Andresen, id., at 208–210. The only statement in either declaration that might bear on the argument is found in the Radcliffe declaration: “Asano . . . and Rixon . . . are complex mechanical linkage-based devices that are expensive to produce and assemble and difficult to package. It is exactly these difficulties with prior art designs that [Engelgau] resolves. The use of an adjustable pedal with a single pivot reflecting pedal position combined with an electronic control mounted between the support and the adjustment assembly at that pivot was a simple, elegant, and novel combination of features in the Engelgau ’565 patent.” Id., at 206, ¶16. Read in the context of the declaration as a whole this is best interpreted to mean that Asano could not be used to solve “[t]he problem addressed by Engelgau ’565[:] to provide a less expensive, more quickly assembled, and smaller package adjustable pedal assembly with electronic control.” Id., at 205, ¶10. The District Court found that combining Asano with a pivot-mounted pedal position sensor fell within the scope of claim 4. 298 F. Supp. 2d, at 592–593. Given the sigificance of that finding to the District Court’s judgment, it is apparent that Teleflex would have made clearer challenges to it if it intended to preserve this claim. In light of Teleflex’s failure to raise the argument in a clear fashion, and the silence of the Court of Appeals on the issue, we take the District Court’s conclusion on the point to be correct. B The District Court was correct to conclude that, as of the time Engelgau designed the subject matter in claim 4, it was obvious to a person of ordinary skill to combine Asano with a pivot-mounted pedal position sensor. There then existed a marketplace that created a strong incentive to convert mechanical pedals to electronic pedals, and the prior art taught a number of methods for achieving this advance. The Court of Appeals considered the issue too narrowly by, in effect, asking whether a pedal designer writing on a blank slate would have chosen both Asano and a modular sensor similar to the ones used in the Chevrolet truckline and disclosed in the ’068 patent. The District Court employed this narrow inquiry as well, though it reached the correct result nevertheless. The proper question to have asked was whether a pedal designer of ordinary skill, facing the wide range of needs created by developments in the field of endeavor, would have seen a benefit to upgrading Asano with a sensor. In automotive design, as in many other fields, the interaction of multiple components means that changing one component often requires the others to be modified as well. Technological developments made it clear that engines using computer-controlled throttles would become standard. As a result, designers might have decided to design new pedals from scratch; but they also would have had reason to make pre-existing pedals work with the new engines. Indeed, upgrading its own pre-existing model led KSR to design the pedal now accused of infringing the Engelgau patent. For a designer starting with Asano, the question was where to attach the sensor. The consequent legal question, then, is whether a pedal designer of ordinary skill starting with Asano would have found it obvious to put the sensor on a fixed pivot point. The prior art discussed above leads us to the conclusion that attaching the sensor where both KSR and Engelgau put it would have been obvious to a person of ordinary skill. The ’936 patent taught the utility of putting the sensor on the pedal device, not in the engine. Smith, in turn, explained to put the sensor not on the pedal’s footpad but instead on its support structure. And from the known wire-chafing problems of Rixon, and Smith’s teaching that “the pedal assemblies must not precipitate any motion in the connecting wires,” Smith, col. 1, lines 35–37, Supplemental App. 274, the designer would know to place the sensor on a nonmoving part of the pedal structure. The most obvious nonmoving point on the structure from which a sensor can easily detect the pedal’s position is a pivot point. The designer, accordingly, would follow Smith in mounting the sensor on a pivot, thereby designing an adjustable electronic pedal covered by claim 4. Just as it was possible to begin with the objective to upgrade Asano to work with a computer-controlled throttle, so too was it possible to take an adjustable electronic pedal like Rixon and seek an improvement that would avoid the wire-chafing problem. Following similar steps to those just explained, a designer would learn from Smith to avoid sensor movement and would come, thereby, to Asano because Asano disclosed an adjustable pedal with a fixed pivot. Teleflex indirectly argues that the prior art taught away from attaching a sensor to Asano because Asano in its view is bulky, complex, and expensive. The only evidence Teleflex marshals in support of this argument, however, is the Radcliffe declaration, which merely indicates that Asano would not have solved Engelgau’s goal of making a small, simple, and inexpensive pedal. What the declaration does not indicate is that Asano was somehow so flawed that there was no reason to upgrade it, or pedals like it, to be compatible with modern engines. Indeed, Teleflex’s own declarations refute this conclusion. Dr. Radcliffe states that Rixon suffered from the same bulk and complexity as did Asano. See id., at 206. Teleflex’s other expert, however, explained that Rixon was itself designed by adding a sensor to a pre-existing mechanical pedal. See id., at 209. If Rixon’s base pedal was not too flawed to upgrade, then Dr. Radcliffe’s declaration does not show Asano was either. Teleflex may have made a plausible argument that Asano is inefficient as compared to Engelgau’s preferred embodiment, but to judge Asano against Engelgau would be to engage in the very hindsight bias Teleflex rightly urges must be avoided. Accordingly, Teleflex has not shown anything in the prior art that taught away from the use of Asano. Like the District Court, finally, we conclude Teleflex has shown no secondary factors to dislodge the determination that claim 4 is obvious. Proper application of Graham and our other precedents to these facts therefore leads to the conclusion that claim 4 encompassed obvious subject matter. As a result, the claim fails to meet the requirement of §103. We need not reach the question whether the failure to disclose Asano during the prosecution of Engelgau voids the presumption of validity given to issued patents, for claim 4 is obvious despite the presumption. We nevertheless think it appropriate to note that the rationale underlying the presumption—that the PTO, in its expertise, has approved the claim—seems much diminished here. IV A separate ground the Court of Appeals gave for reversing the order for summary judgment was the existence of a dispute over an issue of material fact. We disagree with the Court of Appeals on this point as well. To the extent the court understood the Graham approach to exclude the possibility of summary judgment when an expert provides a conclusory affidavit addressing the question of obviousness, it misunderstood the role expert testimony plays in the analysis. In considering summary judgment on that question the district court can and should take into account expert testimony, which may resolve or keep open certain questions of fact. That is not the end of the issue, however. The ultimate judgment of obviousness is a legal determination. Graham, 383 U. S., at 17. Where, as here, the content of the prior art, the scope of the patent claim, and the level of ordinary skill in the art are not in material dispute, and the obviousness of the claim is apparent in light of these factors, summary judgment is appropriate. Nothing in the declarations proffered by Teleflex prevented the District Court from reaching the careful conclusions underlying its order for summary judgment in this case. * * * We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8. These premises led to the bar on patents claiming obvious subject matter established in Hotchkiss and codified in §103. Application of the bar must not be confined within a test or formulation too constrained to serve its purpose. KSR provided convincing evidence that mounting a modular sensor on a fixed pivot point of the Asano pedal was a design step well within the grasp of a person of ordinary skill in the relevant art. Its arguments, and the record, demonstrate that claim 4 of the Engelgau patent is obvious. In rejecting the District Court’s rulings, the Court of Appeals analyzed the issue in a narrow, rigid manner inconsistent with §103 and our precedents. The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion. It is so ordered.
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549.US.327
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The 1-year statute of limitations for seeking federal habeas relief from a state-court judgment is tolled while an “application for State post-conviction or other collateral review” “is pending.” 28 U. S. C. §2244(d)(2). Petitioner Lawrence filed a state postconviction relief application 364 days after his conviction became final. The trial court denied relief, the State Supreme Court affirmed, and this Court denied certiorari. While the certiorari petition was pending, Lawrence filed the present federal habeas application. Then-applicable Eleventh Circuit precedent foreclosed any argument that the limitations period was tolled by the pendency of the certiorari petition. Thus, the District Court dismissed Lawrence’s application as untimely because he waited 113 days after the State Supreme Court’s mandate—well beyond the one day that remained in the limitations period—to file the application. The Eleventh Circuit affirmed. Held: 1. Section 2244(d)(2) does not toll the 1-year limitations period during the pendency of a certiorari petition in this Court. Pp. 3–8. (a) Read naturally, the statute’s text means that the statute of limitations is tolled only while state courts review the application. A state postconviction application “remains pending” “until the application has achieved final resolution through the State’s postconviction procedures.” Carey v. Saffold, 536 U. S. 214, 220. This Court is not a part of those “procedures,” which end when the state courts have finally resolved the application. The application is therefore not “pending” after the state court’s postconviction review is complete. If it were, it is difficult to understand how a state prisoner could exhaust state postconviction remedies without filing a certiorari petition. Yet state prisoners need not petition for certiorari to exhaust state remedies. Fay v. Noia, 372 U. S. 391, 435–438. Pp. 3–5. (b) Lawrence argues that §2244(d)(2) should be construed to have the same meaning as §2244(d)(1)(A), which refers to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” (Emphasis added.) While “direct review” has long included review by this Court, Clay v. United States, 537 U. S. 522, 527–528, §2244(d)(2) refers exclusively to “State post-conviction or other collateral review,” language not easily interpreted to include participation by a federal court. And although the “time for seeking” direct review includes the period for filing a certiorari petition, §2244(d)(2) makes no reference to the “time for seeking” review of a state postconviction court’s judgment. Instead, it seeks to know when a state review application is pending. A more analogous statutory provision, §2263(b)(2), contains a limitations period that is tolled “from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition.” Although this differs from §2244(d)(2)’s language, the language used in both sections clearly provides that tolling hinges on the pendency of state review. This interpretation of §2244(d)(2), results in few practical problems. Because this Court rarely grants review of state postconviction proceedings, it is unlikely that a federal district court would duplicate this Court’s work or analysis. In any event, a district court concerned about duplication can stay a habeas application until this Court acts. Even in the extremely rare case in which a state court grants relief and the State prevails on certiorari, a prisoner whose subsequent federal habeas petition may be entitled to equitable tolling in light of arguably extraordinary circumstances and the prisoner’s diligence. See Pace v. DiGuglielmo, 544 U. S. 408, 418, and n. 8. In contrast to these hypothetical problems, allowing the statute of limitations to be tolled by certiorari petitions would provide incentives for state prisoners to file such petitions as a delay tactic, regardless of the merit of their claims. Pp. 5–8. 2. Assuming, without deciding, that §2244(d)(2) allows for equitable tolling, Lawrence falls far short of showing “extraordinary circumstances,” Pace, supra, at 418, necessary to support equitable tolling of his otherwise untimely claims. Pp. 8–9. 421 F. 3d 1221, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined.
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Congress established a 1-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment, 28 U. S. C. §2244(d), and further provided that the limitations period is tolled while an “application for State post-conviction or other collateral review” “is pending,” §2244(d)(2). We must decide whether a state application is still “pending” when the state courts have entered a final judgment on the matter but a petition for certiorari has been filed in this Court. We hold that it is not. I Petitioner Gary Lawrence and his wife used a pipe and baseball bat to kill Michael Finken. A Florida jury convicted Lawrence of first-degree murder, conspiracy to commit murder, auto theft, and petty theft. The trial court sentenced Lawrence to death. The Florida Supreme Court affirmed Lawrence’s conviction and sentence on appeal, and this Court denied certiorari on January 20, 1998. 522 U. S. 1080. On January 19, 1999, 364 days later, Lawrence filed an application for state postconviction relief in a Florida trial court.[Footnote 1] The court denied relief, and the Florida Supreme Court affirmed, issuing its mandate on November 18, 2002. See Lawrence v. State, 831 So. 2d 121 (per curiam). Lawrence sought review of the denial of state postconviction relief in this Court. We denied certiorari on March 24, 2003. 538 U. S. 926. While Lawrence’s petition for certiorari was pending, he filed the present federal habeas application. The Federal District Court dismissed it as untimely under §2244(d)’s 1-year limitations period. All but one day of the limitations period had lapsed during the 364 days between the time Lawrence’s conviction became final and when he filed for state postconviction relief. The limitations period was then tolled while the Florida courts entertained his state application. After the Florida Supreme Court issued its mandate, Lawrence waited another 113 days—well beyond the one day that remained in the limitations period—to file his federal habeas application. As a consequence, his federal application could be considered timely only if the limitations period continued to be tolled during this Court’s consideration of his petition for certiorari. Then-applicable Eleventh Circuit precedent foreclosed any argument that §2244’s statute of limitations was tolled by the pendency of a petition for certiorari seeking review of a state postconviction proceeding. See Coates v. Byrd, 211 F. 3d 1225, 1227 (2000) (per curiam). Accordingly, the District Court concluded that Lawrence had only one day to file a federal habeas application after the Florida Supreme Court issued its mandate. The Eleventh Circuit affirmed. 421 F. 3d 1221 (2005). We granted certiorari, 547 U. S. ___ (2006), and now affirm. II The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, sets a one-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment. 28 U. S. C. §2244(d)(1). This limitations period is tolled while a state prisoner seeks postconviction relief in state court: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” §2244(d)(2). Based on this provision, the parties agree that AEDPA’s limitations period was tolled from the filing of Lawrence’s petition for state postconviction relief until the Florida Supreme Court issued its mandate affirming the denial of that petition. At issue here is whether the limitations period was also tolled during the pendency of Lawrence’s petition for certiorari to this Court seeking review of the denial of state postconviction relief. If it was tolled, Lawrence’s federal habeas application was timely. So we must decide whether, according to §2244(d)(2), an “application for State post-conviction or other collateral review” “is pending” while this Court considers a certiorari petition.[Footnote 2] Read naturally, the text of the statute must mean that the statute of limitations is tolled only while state courts review the application. As we stated in Carey v. Saffold, 536 U. S. 214, 220 (2002) (internal quotation marks omitted), a state postconviction application “remains pending” “until the application has achieved final resolution through the State’s postconviction procedures.” This Court is not a part of a “State’s post-conviction procedures.” State review ends when the state courts have finally resolved an application for state postconviction relief. After the State’s highest court has issued its mandate or denied review, no other state avenues for relief remain open. And an application for state postconviction review no longer exists. All that remains is a separate certiorari petition pending before a federal court. The application for state postconviction review is therefore not “pending” after the state court’s postconviction review is complete, and §2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari. If an application for state postconviction review were “pending” during the pendency of a certiorari petition in this Court, it is difficult to understand how a state prisoner could exhaust state postconviction remedies without filing a petition for certiorari. Indeed, AEDPA’s exhaustion provision and tolling provision work together: “The tolling provision of §2244(d)(2) balances the interests served by the exhaustion requirement and the limitation period… . Section 2244(d)(1)’s limitation period and §2244(d)(2)’s tolling provision, together with §2254(b)’s exhaustion requirement, encourage litigants first to exhaust all state remedies and then to file their federal habeas petitions as soon as possible.” Duncan v. Walker, 533 U. S. 167, 179, 181 (2001) (final emphasis added). Yet we have said that state prisoners need not petition for certiorari to exhaust state remedies. Fay v. Noia, 372 U. S. 391, 435–438 (1963); County Court of Ulster Cty. v. Allen, 442 U. S. 140, 149–150, n. 7 (1979). State remedies are exhausted at the end of state-court review. Fay, supra, at 435–438; Allen, supra, at 149–150, n. 7. Lawrence argues that §2244(d)(2) should be construed to have the same meaning as §2244(d)(1)(A), the trigger provision that determines when AEDPA’s statute of limitations begins to run. But §2244(d)(1)(A) uses much different language from §2244(d)(2), referring to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” §2244(d)(1)(A) (emphasis added). When interpreting similar language in §2255, we explained that “direct review” has long included review by this Court. Clay v. United States, 537 U. S. 522, 527–528 (2003). Indeed, we noted that “[t]he Courts of Appeals have uniformly interpreted ‘direct review’ in §2244(d)(1)(A) to encompass review of a state conviction by this Court.” Id., at 528, n. 3 (collecting cases). By contrast, §2244(d)(2) refers exclusively to “State post-conviction or other collateral review,” language not easily interpreted to include participation by a federal court. Furthermore, §2244(d)(1)(A) refers to the “time for seeking” direct review, which includes review by this Court under Clay. By parity of reasoning, the “time for seeking” review of a state postconviction judgment arguably would include the period for filing a certiorari petition before this Court. However, §2244(d)(2) makes no reference to the “time for seeking” review of a state postconviction court’s judgment. Instead, it seeks to know when an application for “State … review” is pending. The linguistic difference is not insignificant: When the state courts have issued a final judgment on a state application, it is no longer pending even if a prisoner has additional time for seeking review of that judgment through a petition for certiorari. A more analogous statutory provision is §2263(b)(2), which is part of AEDPA’s “opt-in” provisions for States that comply with specific requirements relating to the provision of postconviction counsel. Under §2263, the limitations period is tolled “from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition.” §2263(b)(2). Lawrence concedes that under this language there would be no tolling for certiorari petitions seeking review of state postconviction applications. And although he correctly notes that the language in §2263 differs from the language of §2244(d)(2), it is clear that the language used in both sections provides that tolling hinges on the pendency of state review. See §2263(b)(2) (“until the final State court disposition of such petition”); §2244(d)(2) (“a properly filed application for State post-conviction or other collateral review … is pending”). Given Congress’ clear intent in §2263 to provide tolling for certiorari petitions on direct review but not for certiorari petitions following state postconviction review, it is not surprising that Congress would make the same distinction in §2244. Lawrence also argues that our interpretation would result in awkward situations in which state prisoners have to file federal habeas applications while they have certiorari petitions from state postconviction proceedings pending before this Court. But these situations will also arise under the express terms of §2263, and Lawrence admits that Congress intended that provision to preclude tolling for certiorari petitions. Brief for Petitioner 22. Because Congress was not concerned by this potential for awkwardness in §2263, there is no reason for us to construe the statute to avoid it in §2244(d)(2). Contrary to Lawrence’s suggestion, our interpretation of §2244(d)(2) results in few practical problems. As Justice Stevens has noted, “this Court rarely grants review at this stage of the litigation even when the application for state collateral relief is supported by arguably meritorious federal constitutional claims,” choosing instead to wait for “federal habeas proceedings.” Kyles v. Whitley, 498 U. S. 931, 932 (1990) (opinion concurring in denial of stay of execution). Thus, the likelihood that the District Court will duplicate work or analysis that might be done by this Court if we granted certiorari to review the state postconviction proceeding is quite small. And in any event, a district court concerned about duplicative work can stay the habeas application until this Court resolves the case or, more likely, denies the petition for certiorari. Lawrence argues that even greater anomalies result from our interpretation when the state court grants relief to a prisoner and the state petitions for certiorari. In that hypothetical, Lawrence maintains that the prisoner would arguably lack standing to file a federal habeas application immediately after the state court’s judgment (because the state court granted him relief) but would later be time barred from filing a federal habeas application if we granted certiorari and the State prevailed. Again, this particular procedural posture is extremely rare. Even so, equitable tolling may be available, in light of the arguably extraordinary circumstances and the prisoner’s diligence. See Pace v. DiGuglielmo, 544 U. S. 408, 418, and n. 8 (2005).[Footnote 3] We cannot base our interpretation of the statute on an exceedingly rare inequity that Congress almost certainly was not contemplating and that may well be cured by equitable tolling. In contrast to the hypothetical problems identified by Lawrence, allowing the statute of limitations to be tolled by certiorari petitions would provide incentives for state prisoners to file certiorari petitions as a delay tactic. By filing a petition for certiorari, the prisoner would push back §2254’s deadline while we resolved the petition for certiorari. This tolling rule would provide an incentive for prisoners to file certiorari petitions—regardless of the merit of the claims asserted—so that they receive additional time to file their habeas applications. III Lawrence also argues that equitable tolling applies to his otherwise untimely claims. We have not decided whether §2244(d) allows for equitable tolling. See ibid. Because the parties agree that equitable tolling is available, we assume without deciding that it is. To be entitled to equitable tolling, Lawrence must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Id., at 418. Lawrence makes several arguments in support of his contention that equitable tolling applies to his case. First, he argues that legal confusion about whether AEDPA’s limitations period is tolled by certiorari petitions justifies equitable tolling. But at the time the limitations period expired in Lawrence’s case, the Eleventh Circuit and every other Circuit to address the issue agreed that the limitations period was not tolled by certiorari petitions. See, e.g., Coates, 211 F. 3d, at 1227. The settled state of the law at the relevant time belies any claim to legal confusion. Second, Lawrence argues that his counsel’s mistake in miscalculating the limitations period entitles him to equitable tolling. If credited, this argument would essentially equitably toll limitations periods for every person whose attorney missed a deadline. Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel. E.g., Coleman v. Thompson, 501 U. S. 722, 756–757 (1991). Third, Lawrence argues that his case presents special circumstances because the state courts appointed and supervised his counsel. But a State’s effort to assist prisoners in postconviction proceedings does not make the State accountable for a prisoner’s delay. Lawrence has not alleged that the State prevented him from hiring his own attorney or from representing himself. It would be perverse indeed if providing prisoners with postconviction counsel deprived States of the benefit of the AEDPA statute of limitations. See, e.g., Duncan, 533 U. S., at 179 (“The 1-year limitation period of §2244(d)(1) quite plainly serves the well-recognized interest in the finality of state court judgments”). Fourth, Lawrence argues that his mental incapacity justifies his reliance upon counsel and entitles him to equitable tolling. Even assuming this argument could be legally credited, Lawrence has made no factual showing of mental incapacity. In sum, Lawrence has fallen far short of showing “extraordinary circumstances” necessary to support equitable tolling. IV The Court of Appeals correctly determined that the filing of a petition for certiorari before this Court does not toll the statute of limitations under §2244(d)(2). It also correctly declined to equitably toll the limitations period in the factual circumstances of Lawrence’s case. For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Lawrence contends that delays in Florida’s program for appointing postconviction counsel and other issues outside of his control caused 298 days to pass before Florida appointed an attorney who took an active role in his postconviction case. These facts have little relevance to our analysis. Lawrence did not seek certiorari on the question whether these facts entitle him to equitable tolling. Indeed, Lawrence was able to file his state postconviction petition on time in spite of these delays. And before this Court, he argues that his attorney mistakenly missed the federal habeas deadline, not that he lacked adequate time to file a federal habeas application. Footnote 2 We have previously held that the word “State” modifies both the terms “post-conviction” and “other collateral review.” Duncan v. Walker, 533 U. S. 167, 172–174 (2001). The question, therefore, is whether “an application for State post-conviction or other [State] collateral review … is pending.” §2244(d)(2) (emphasis added). Footnote 3 As discussed below, we assume, as the parties do, the availability of equitable tolling under §2244.
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550.US.618
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During most of the time that petitioner Ledbetter was employed by respondent Goodyear, salaried employees at the plant where she worked were given or denied raises based on performance evaluations. Ledbetter submitted a questionnaire to the Equal Employment Opportunity Commission (EEOC) in March 1998 and a formal EEOC charge in July 1998. After her November 1998 retirement, she filed suit, asserting, among other things, a sex discrimination claim under Title VII of the Civil Rights Act of 1964. The District Court allowed her Title VII pay discrimination claim to proceed to trial. There, Ledbetter alleged that several supervisors had in the past given her poor evaluations because of her sex; that as a result, her pay had not increased as much as it would have if she had been evaluated fairly; that those past pay decisions affected the amount of her pay throughout her employment; and that by the end of her employment, she was earning significantly less than her male colleagues. Goodyear maintained that the evaluations had been nondiscriminatory, but the jury found for Ledbetter, awarding backpay and damages. On appeal, Goodyear contended that the pay discrimination claim was time barred with regard to all pay decisions made before September 26, 1997—180 days before Ledbetter filed her EEOC questionnaire—and that no discriminatory act relating to her pay occurred after that date. The Eleventh Circuit reversed, holding that a Title VII pay discrimination claim cannot be based on allegedly discriminatory events that occurred before the last pay decision that affected the employee’s pay during the EEOC charging period, and concluding that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions during that period, denials of raises in 1997 and 1998. Held: Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter’s claim is untimely. Pp. 4–24. (a) An individual wishing to bring a Title VII lawsuit must first file an EEOC charge within, as relevant here, 180 days “after the alleged unlawful employment practice occurred.” 42 U. S. C. §2000e–2(a)(1). In addressing the issue of an EEOC charge’s timeliness, this Court has stressed the need to identify with care the specific employment practice at issue. Ledbetter’s arguments—that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period—fail because they would require the Court in effect to jettison the defining element of the disparate-treatment claim on which her Title VII recovery was based, discriminatory intent. United Air Lines, Inc. v. Evans, 431 U. S. 553, Delaware State College v. Ricks, 449 U. S. 250, Lorance v. AT&T Technologies, Inc., 490 U. S. 900, and National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, clearly instruct that the EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But if an employer engages in a series of separately actionable intentionally discriminatory acts, then a fresh violation takes place when each act is committed. Ledbetter makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions occurring before that period were not communicated to her. She argues simply that Goodyear’s nondiscriminatory conduct during the charging period gave present effect to discriminatory conduct outside of that period. But current effects alone cannot breathe life into prior, uncharged discrimination. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory employment decision was made and communicated to her. Her attempt to shift forward the intent associated with prior discriminatory acts to the 1998 pay decision is unsound, for it would shift intent away from the act that consummated the discriminatory employment practice to a later act not performed with bias or discriminatory motive, imposing liability in the absence of the requisite intent. Her argument would also distort Title VII’s “integrated, multistep enforcement procedure.” Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355, 359. The short EEOC filing deadline reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation. Id., at 367–368. Nothing in Title VII supports treating the intent element of Ledbetter’s disparate-treatment claim any differently from the employment practice element of the claim. Pp. 4–13. (b) Bazemore v. Friday, 478 U. S. 385 (per curiam), which concerned a disparate-treatment pay claim, is entirely consistent with Evans, Ricks, Lorance, and Morgan. Bazemore’s rule is that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. It is not, as Ledbetter contends, a “paycheck accrual rule” under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted that paycheck’s amount, no matter how long ago the discrimination occurred. Because Ledbetter has not adduced evidence that Goodyear initially adopted its performance-based pay system in order to discriminate based on sex or that it later applied this system to her within the charging period with discriminatory animus, Bazemore is of no help to her. Pp. 13–21. (c) Ledbetter’s “paycheck accrual rule” is also not supported by either analogies to the statutory regimes of the Equal Pay Act of 1963, the Fair Labor Standards Act of 1938, or the National Labor Relations Act, or policy arguments for giving special treatment to pay claims. Pp. 21–24. 421 F. 3d 1169, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined.
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This case calls upon us to apply established precedent in a slightly different context. We have previously held that the time for filing a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC) begins when the discriminatory act occurs. We have explained that this rule applies to any “[d]iscrete ac[t]” of discrimination, including discrimination in “termination, failure to promote, denial of transfer, [and] refusal to hire.” National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 114 (2002). Because a pay-setting decision is a “discrete act,” it follows that the period for filing an EEOC charge begins when the act occurs. Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII. Petitioner also contends that discrimination in pay is different from other types of employment discrimination and thus should be governed by a different rule. But because a pay-setting decision is a discrete act that occurs at a particular point in time, these arguments must be rejected. We therefore affirm the judgment of the Court of Appeals. I Petitioner Lilly Ledbetter (Ledbetter) worked for respondent Goodyear Tire and Rubber Company (Goodyear) at its Gadsden, Alabama, plant from 1979 until 1998. During much of this time, salaried employees at the plant were given or denied raises based on their supervisors’ evaluation of their performance. In March 1998, Ledbetter submitted a questionnaire to the EEOC alleging certain acts of sex discrimination, and in July of that year she filed a formal EEOC charge. After taking early retirement in November 1998, Ledbetter commenced this action, in which she asserted, among other claims, a Title VII pay discrimination claim and a claim under the Equal Pay Act of 1963 (EPA), 29 U. S. C. §206(d). The District Court granted summary judgment in favor of Goodyear on several of Ledbetter’s claims, including her Equal Pay Act claim, but allowed others, including her Title VII pay discrimination claim, to proceed to trial. In support of this latter claim, Ledbetter introduced evidence that during the course of her employment several supervisors had given her poor evaluations because of her sex, that as a result of these evaluations her pay was not increased as much as it would have been if she had been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout her employment. Toward the end of her time with Goodyear, she was being paid significantly less than any of her male colleagues. Goodyear maintained that the evaluations had been nondiscriminatory, but the jury found for Ledbetter and awarded her backpay and damages. On appeal, Goodyear contended that Ledbetter’s pay discrimination claim was time barred with respect to all pay decisions made prior to September 26, 1997—that is, 180 days before the filing of her EEOC questionnaire.[Footnote 1] And Goodyear argued that no discriminatory act relating to Ledbetter’s pay occurred after that date. The Court of Appeals for the Eleventh Circuit reversed, holding that a Title VII pay discrimination claim cannot be based on any pay decision that occurred prior to the last pay decision that affected the employee’s pay during the EEOC charging period. 421 F. 3d 1169, 1182–1183 (2005). The Court of Appeals then concluded that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions that occurred within that time span, namely, a decision made in 1997 to deny Ledbetter a raise and a similar decision made in 1998. Id., at 1186–1187. Ledbetter filed a petition for a writ of certiorari but did not seek review of the Court of Appeals’ holdings regarding the sufficiency of the evidence in relation to the 1997 and 1998 pay decisions. Rather, she sought review of the following question: “Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.” Pet. for Cert. i. In light of disagreement among the Courts of Appeals as to the proper application of the limitations period in Title VII disparate-treatment pay cases, compare 421 F. 3d 1169, with Forsyth v. Federation Employment & Guidance Serv., 409 F. 3d 565 (CA2 2005); Shea v. Rice, 409 F. 3d 448 (CADC 2005), we granted certiorari, 548 U. S. ___ (2006). II Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” to discriminate “against any individual with respect to his compensation … because of such individual’s … sex.” 42 U. S. C. §2000e–2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. §2000e–5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) “after the alleged unlawful employment practice occurred,” ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, §2000e–5(f)(1). In addressing the issue whether an EEOC charge was filed on time, we have stressed the need to identify with care the specific employment practice that is at issue. Morgan, 536 U. S., at 110–111. Ledbetter points to two different employment practices as possible candidates. Primarily, she urges us to focus on the paychecks that were issued to her during the EEOC charging period (the 180-day period preceding the filing of her EEOC questionnaire), each of which, she contends, was a separate act of discrimination. Alternatively, Ledbetter directs us to the 1998 decision denying her a raise, and she argues that this decision was “unlawful because it carried forward intentionally discriminatory disparities from prior years.” Reply Brief for Petitioner 20. Both of these arguments fail because they would require us in effect to jettison the defining element of the legal claim on which her Title VII recovery was based. Ledbetter asserted disparate treatment, the central element of which is discriminatory intent. See Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam); Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977); Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 1002 (1998) (Blackmun, J., joined by Brennan, and Marshall, JJ., concurring in part and concurring in judgment) (“[A] disparate-treatment challenge focuses exclusively on the intent of the employer”). However, Ledbetter does not assert that the relevant Goodyear decisionmakers acted with actual discriminatory intent either when they issued her checks during the EEOC charging period or when they denied her a raise in 1998. Rather, she argues that the paychecks were unlawful because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period. Brief for Petitioner 22. Similarly, she maintains that the 1998 decision was unlawful because it “carried forward” the effects of prior, uncharged discrimination decisions. Reply Brief for Petitioner 20. In essence, she suggests that it is sufficient that discriminatory acts that occurred prior to the charging period had continuing effects during that period. Brief for Petitioner 13 (“[E]ach paycheck that offers a woman less pay than a similarly situated man because of her sex is a separate violation of Title VII with its own limitations period, regardless of whether the paycheck simply implements a prior discriminatory decision made outside the limitations period”); see also Reply Brief for Petitioner 20. This argument is squarely foreclosed by our precedents. In United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977), we rejected an argument that is basically the same as Ledbetter’s. Evans was forced to resign because the airline refused to employ married flight attendants, but she did not file an EEOC charge regarding her termination. Some years later, the airline rehired her but treated her as a new employee for seniority purposes. Id., at 554–555. Evans then sued, arguing that, while any suit based on the original discrimination was time barred, the airline’s refusal to give her credit for her prior service gave “present effect to [its] past illegal act and thereby perpetuate[d] the consequences of forbidden discrimination.” Id., at 557. We agreed with Evans that the airline’s “seniority system [did] indeed have a continuing impact on her pay and fringe benefits,” id., at 558, but we noted that “the critical question [was] whether any present violation exist[ed].” Ibid. (emphasis in original). We concluded that the continuing effects of the precharging period discrimination did not make out a present violation. As Justice Stevens wrote for the Court: “United was entitled to treat [Evans’ termination] as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed by §706(d). A discriminatory act which is not made the basis for a timely charge … is merely an unfortunate event in history which has no present legal consequences.” Ibid. It would be difficult to speak to the point more directly. Equally instructive is Delaware State College v. Ricks, 449 U. S. 250 (1980), which concerned a college librarian, Ricks, who alleged that he had been discharged because of race. In March 1974, Ricks was denied tenure, but he was given a final, nonrenewable one-year contract that expired on June 30, 1975. Id., at 252–253. Ricks delayed filing a charge with the EEOC until April 1975, id., at 254, but he argued that the EEOC charging period ran from the date of his actual termination rather than from the date when tenure was denied. In rejecting this argument, we recognized that “one of the effects of the denial of tenure,” namely, his ultimate termination, “did not occur until later.” Id., at 258 (emphasis in original). But because Ricks failed to identify any specific discriminatory act “that continued until, or occurred at the time of, the actual termination of his employment,” id., at 257, we held that the EEOC charging period ran from “the time the tenure decision was made and communicated to Ricks,” id., at 258. This same approach dictated the outcome in Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989), which grew out of a change in the way in which seniority was calculated under a collective-bargaining agreement. Before 1979, all employees at the plant in question accrued seniority based simply on years of employment at the plant. In 1979, a new agreement made seniority for workers in the more highly paid (and traditionally male) position of “tester” depend on time spent in that position alone and not in other positions in the plant. Several years later, when female testers were laid off due to low seniority as calculated under the new provision, they filed an EEOC charge alleging that the 1979 scheme had been adopted with discriminatory intent, namely, to protect incumbent male testers when women with substantial plant seniority began to move into the traditionally male tester positions. Id., at 902–903. We held that the plaintiffs’ EEOC charge was not timely because it was not filed within the specified period after the adoption in 1979 of the new seniority rule. We noted that the plaintiffs had not alleged that the new seniority rule treated men and women differently or that the rule had been applied in a discriminatory manner. Rather, their complaint was that the rule was adopted originally with discriminatory intent. Id., at 905. And as in Evans and Ricks, we held that the EEOC charging period ran from the time when the discrete act of alleged intentional discrimination occurred, not from the date when the effects of this practice were felt. 490 U. S., at 907–908. We stated: “Because the claimed invalidity of the facially nondiscriminatory and neutrally applied tester seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitations period.” Id., at 911.[Footnote 2] Our most recent decision in this area confirms this understanding. In Morgan, we explained that the statutory term “employment practice” generally refers to “a discrete act or single ‘occurrence’ ” that takes place at a particular point in time. 536 U. S., at 110–111. We pointed to “termination, failure to promote, denial of transfer, [and] refusal to hire” as examples of such “discrete” acts, and we held that a Title VII plaintiff “can only file a charge to cover discrete acts that ‘occurred’ within the appropriate time period.” Id., at 114. The instruction provided by Evans, Ricks, Lorance, and Morgan is clear. The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But of course, if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed. See Morgan, supra, at 113. Ledbetter’s arguments here—that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period—cannot be reconciled with Evans, Ricks, Lorance, and Morgan. Ledbetter, as noted, makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions that occurred prior to that period were not communicated to her. Instead, she argues simply that Goodyear’s conduct during the charging period gave present effect to discriminatory conduct outside of that period. Brief for Petitioner 13. But current effects alone cannot breathe life into prior, uncharged discrimination; as we held in Evans, such effects in themselves have “no present legal consequences.” 431 U. S., at 558. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure. In an effort to circumvent the need to prove discriminatory intent during the charging period, Ledbetter relies on the intent associated with other decisions made by other persons at other times. Reply Brief for Petitioner 6 (“Intentional discrimination … occurs when … differential treatment takes place, even if the intent to engage in that conduct for a discriminatory purpose was made previously”). Ledbetter’s attempt to take the intent associated with the prior pay decisions and shift it to the 1998 pay decision is unsound. It would shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive. The effect of this shift would be to impose liability in the absence of the requisite intent. Our cases recognize this point. In Evans, for example, we did not take the airline’s discriminatory intent in 1968, when it discharged the plaintiff because of her sex, and attach that intent to its later act of neutrally applying its seniority rules. Similarly, in Ricks, we did not take the discriminatory intent that the college allegedly possessed when it denied Ricks tenure and attach that intent to its subsequent act of terminating his employment when his nonrenewable contract ran out. On the contrary, we held that “the only alleged discrimination occurred—and the filing limitations periods therefore commenced—at the time the tenure decision was made and communicated to Ricks.” 449 U. S., at 258. Not only would Ledbetter’s argument effectively eliminate the defining element of her disparate-treatment claim, but it would distort Title VII’s “integrated, multistep enforcement procedure.” Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355, 359 (1977). We have previously noted the legislative compromises that preceded the enactment of Title VII, Mohasco Corp. v. Silver, 447 U. S. 807, 819–821 (1980); EEOC v. Commercial Office Products Co., 486 U. S. 107, 126 (1988) (Stevens, J., joined by Rehnquist, C. J., and Scalia, J., dissenting). Respectful of the legislative process that crafted this scheme, we must “give effect to the statute as enacted,” Mohasco, supra, at 819, and we have repeatedly rejected suggestions that we extend or truncate Congress’ deadlines. See, e.g., Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229, 236–240 (1976) (union grievance procedures do not toll EEOC filing deadline); Alexander v. Gardner-Denver Co., 415 U. S. 36, 47–49 (1974) (arbitral decisions do not foreclose access to court following a timely filed EEOC complaint). Statutes of limitations serve a policy of repose. American Pipe & Constr. Co. v. Utah, 414 U. S. 538, 554–555 (1974). They “represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.’ ” United States v. Kubrick, 444 U. S. 111, 117 (1979) (quoting Railroad Telegraphers v. Railway Express Agency, Inc., 321 U. S. 342, 349 (1944)). The EEOC filing deadline “protect[s] employers from the burden of defending claims arising from employment decisions that are long past.” Ricks, supra, at 256–257. Certainly, the 180-day EEOC charging deadline, 42 U. S. C. §2000e–5(e)(1), is short by any measure, but “[b]y choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.” Mohasco, supra, at 825. This short deadline reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation. Occidental Life Ins., supra, at 367–368; Alexander, supra, at 44. A disparate-treatment claim comprises two elements: an employment practice, and discriminatory intent. Nothing in Title VII supports treating the intent element of Ledbetter’s claim any differently from the employment practice element.[Footnote 3] If anything, concerns regarding stale claims weigh more heavily with respect to proof of the intent associated with employment practices than with the practices themselves. For example, in a case such as this in which the plaintiff’s claim concerns the denial of raises, the employer’s challenged acts (the decisions not to increase the employee’s pay at the times in question) will almost always be documented and will typically not even be in dispute. By contrast, the employer’s intent is almost always disputed, and evidence relating to intent may fade quickly with time. In most disparate-treatment cases, much if not all of the evidence of intent is circumstantial. Thus, the critical issue in a case involving a long-past performance evaluation will often be whether the evaluation was so far off the mark that a sufficient inference of discriminatory intent can be drawn. See Watson, 487 U. S., at 1004 (Blackmun, J., joined by Brennan and Marshall, JJ., concurring in part and concurring in judgment) (noting that in a disparate-treatment claim, the McDonnell Douglas factors establish discrimination by inference). See also, e.g., Zhuang v. Datacard Corp., 414 F. 3d 849 (CA8 2005) (rejecting inference of discrimination from performance evaluations); Cooper v. Southern Co., 390 F. 3d 695, 732–733 (CA11 2004) (same). This can be a subtle determination, and the passage of time may seriously diminish the ability of the parties and the factfinder to reconstruct what actually happened.[Footnote 4] Ledbetter contends that employers would be protected by the equitable doctrine of laches, but Congress plainly did not think that laches was sufficient in this context. Indeed, Congress took a diametrically different approach, including in Title VII a provision allowing only a few months in most cases to file a charge with the EEOC. 42 U. S. C. §2000e–5(e)(1). Ultimately, “experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco, 447 U. S., at 826. By operation of §§2000e–5(e)(1) and 2000e–5(f)(1), a Title VII “claim is time barred if it is not filed within these time limits.” Morgan, 536 U. S., at 109; Electrical Workers, 429 U. S., at 236. We therefore reject the suggestion that an employment practice committed with no improper purpose and no discriminatory intent is rendered unlawful nonetheless because it gives some effect to an intentional discriminatory act that occurred outside the charging period. Ledbetter’s claim is, for this reason, untimely. III A In advancing her two theories Ledbetter does not seriously contest the logic of Evans, Ricks, Lorance, and Morgan as set out above, but rather argues that our decision in Bazemore v. Friday, 478 U. S. 385 (1986) (per curiam), requires different treatment of her claim because it relates to pay. Ledbetter focuses specifically on our statement that “[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.” Id., at 395. She argues that in Bazemore we adopted a “paycheck accrual rule” under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted the amount of that paycheck, no matter how long ago the discrimination occurred. On this reading, Bazemore dispensed with the need to prove actual discriminatory intent in pay cases and, without giving any hint that it was doing so, repudiated the very different approach taken previously in Evans and Ricks. Ledbetter’s interpretation is unsound. Bazemore concerned a disparate-treatment pay claim brought against the North Carolina Agricultural Extension Service (Service). 478 U. S., at 389–390. Service employees were originally segregated into “a white branch” and “a ‘Negro branch,’ ” with the latter receiving less pay, but in 1965 the two branches were merged. Id., at 390–391. After Title VII was extended to public employees in 1972, black employees brought suit claiming that pay disparities attributable to the old dual pay scale persisted. Id., at 391. The Court of Appeals rejected this claim, which it interpreted to be that the “ ‘discriminatory difference in salaries should have been affirmatively eliminated.’ ” Id., at 395. This Court reversed in a per curiam opinion, 478 U. S., at 386–388, but all of the Members of the Court joined Justice Brennan’s separate opinion, see id., at 388 (opinion concurring in part). Justice Brennan wrote: “The error of the Court of Appeals with respect to salary disparities created prior to 1972 and perpetuated thereafter is too obvious to warrant extended discussion: that the Extension Service discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the Extension Service became covered by Title VII. To hold otherwise would have the effect of exempting from liability those employers who were historically the greatest offenders of the rights of blacks. A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII’s effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed.” Id., at 395 (emphasis in original). Far from adopting the approach that Ledbetter advances here, this passage made a point that was “too obvious to warrant extended discussion,” ibid.; namely, that when an employer adopts a facially discriminatory pay structure that puts some employees on a lower scale because of race, the employer engages in intentional discrimination whenever it issues a check to one of these disfavored employees. An employer that adopts and intentionally retains such a pay structure can surely be regarded as intending to discriminate on the basis of race as long as the structure is used. Bazemore thus is entirely consistent with our prior precedents, as Justice Brennan’s opinion took care to point out. Noting that Evans turned on whether “ ‘any present violation exist[ed],’ ” Justice Brennan stated that the Bazemore plaintiffs were alleging that the defendants “ha[d] not from the date of the Act forward made all their employment decisions in a wholly nondiscriminatory way,” 478 U. S., at 396–397, n. 6 (emphasis in original; internal quotation marks and brackets omitted)–which is to say that they had engaged in fresh discrimination. Justice Brennan added that the Court’s “holding in no sense g[ave] legal effect to the pre-1972 actions, but, consistent with Evans … focuse[d] on the present salary structure, which is illegal if it is a mere continuation of the pre-1965 discriminatory pay structure.” Id., at 397, n. 6 (emphasis added). The sentence in Justice Brennan’s opinion on which Ledbetter chiefly relies comes directly after the passage quoted above, and makes a similarly obvious point: “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Id., at 395.[Footnote 5] In other words, a freestanding violation may always be charged within its own charging period regardless of its connection to other violations. We repeated this same point more recently in Morgan: “The existence of past acts and the employee’s prior knowledge of their occurrence … does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed.” 536 U. S., at 113.[Footnote 6] Neither of these opinions stands for the proposition that an action not comprising an employment practice and alleged discriminatory intent is separately chargeable, just because it is related to some past act of discrimination. Ledbetter attempts to eliminate the obvious inconsistencies between her interpretation of Bazemore and the Evans/Ricks/Lorance/Morgan line of cases on the ground that none of the latter cases involved pay raises, but the logic of our prior cases is fully applicable to pay cases. To take Evans as an example, the employee there was unlawfully terminated; this caused her to lose seniority; and the loss of seniority affected her wages, among other things. 431 U. S., at 555, n. 5 (“[S]eniority determine[s] a flight attendant’s wages; the duration and timing of vacations; rights to retention in the event of layoffs and rights to re-employment thereafter; and rights to preferential selection of flight assignments”). The relationship between past discrimination and adverse present effects was the same in Evans as it is here. Thus, the argument that Ledbetter urges us to accept here would necessarily have commanded a different outcome in Evans. Bazemore stands for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. But a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is “facially nondiscriminatory and neutrally applied.” Lorance, 490 U. S., at 911. The fact that precharging period discrimination adversely affects the calculation of a neutral factor (like seniority) that is used in determining future pay does not mean that each new paycheck constitutes a new violation and restarts the EEOC charging period. Because Ledbetter has not adduced evidence that Goodyear initially adopted its performance-based pay system in order to discriminate on the basis of sex or that it later applied this system to her within the charging period with any discriminatory animus, Bazemore is of no help to her. Rather, all Ledbetter has alleged is that Goodyear’s agents discriminated against her individually in the past and that this discrimination reduced the amount of later paychecks. Because Ledbetter did not file timely EEOC charges relating to her employer’s discriminatory pay decisions in the past, she cannot maintain a suit based on that past discrimination at this time. B The dissent also argues that pay claims are different. Its principal argument is that a pay discrimination claim is like a hostile work environment claim because both types of claims are “ ‘based on the cumulative effect of individual acts,’ ” post, at 6–7, but this analogy overlooks the critical conceptual distinction between these two types of claims. And although the dissent relies heavily on Morgan, the dissent’s argument is fundamentally inconsistent with Morgan’s reasoning. Morgan distinguished between “discrete” acts of discrimination and a hostile work environment. A discrete act of discrimination is an act that in itself “constitutes a separate actionable ‘unlawful employment practice’ ” and that is temporally distinct. Morgan, 536 U. S., at 114, 117. As examples we identified “termination, failure to promote, denial of transfer, or refusal to hire.” Id., at 114. A hostile work environment, on the other hand, typically comprises a succession of harassing acts, each of which “may not be actionable on its own.” In addition, a hostile work environment claim “cannot be said to occur on any particular day.” Id., at 115–116. In other words, the actionable wrong is the environment, not the individual acts that, taken together, create the environment.[Footnote 7] Contrary to the dissent’s assertion, post, at 6–7, what Ledbetter alleged was not a single wrong consisting of a succession of acts. Instead, she alleged a series of discrete discriminatory acts, see Brief for Petitioner 13, 15 (arguing that payment of each paycheck constituted a separate violation of Title VII), each of which was independently identifiable and actionable, and Morgan is perfectly clear that when an employee alleges “serial violations,” i.e., a series of actionable wrongs, a timely EEOC charge must be filed with respect to each discrete alleged violation. 536 U. S., at 113. While this fundamental misinterpretation of Morgan is alone sufficient to show that the dissent’s approach must be rejected, it should also be noted that the dissent is coy as to whether it would apply the same rule to all pay discrimination claims or whether it would limit the rule to cases like Ledbetter’s, in which multiple discriminatory pay decisions are alleged. The dissent relies on the fact that Ledbetter was allegedly subjected to a series of discriminatory pay decisions over a period of time, and the dissent suggests that she did not realize for some time that she had been victimized. But not all pay cases share these characteristics. If, as seems likely, the dissent would apply the same rule in all pay cases, then, if a single discriminatory pay decision made 20 years ago continued to affect an employee’s pay today, the dissent would presumably hold that the employee could file a timely EEOC charge today. And the dissent would presumably allow this even if the employee had full knowledge of all the circumstances relating to the 20-year-old decision at the time it was made.[Footnote 8] The dissent, it appears, proposes that we adopt a special rule for pay cases based on the particular characteristics of one case that is certainly not representative of all pay cases and may not even be typical. We refuse to take that approach. IV In addition to the arguments previously discussed, Ledbetter relies largely on analogies to other statutory regimes and on extrastatutory policy arguments to support her “paycheck accrual rule.” A Ledbetter places significant weight on the EPA, which was enacted contemporaneously with Title VII and prohibits paying unequal wages for equal work because of sex. 29 U. S. C. §206(d). Stating that “the lower courts routinely hear [EPA] claims challenging pay disparities that first arose outside the limitations period,” Ledbetter suggests that we should hold that Title VII is violated each time an employee receives a paycheck that reflects past discrimination. Brief for Petitioner 34–35. The simple answer to this argument is that the EPA and Title VII are not the same. In particular, the EPA does not require the filing of a charge with the EEOC or proof of intentional discrimination. See §206(d)(1) (asking only whether the alleged inequality resulted from “any other factor other than sex”). Ledbetter originally asserted an EPA claim, but that claim was dismissed by the District Court and is not before us. If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts.[Footnote 9] Ledbetter’s appeal to the Fair Labor Standards Act of 1938 (FLSA) is equally unavailing. Stating that it is “well established that the statute of limitations for violations of the minimum wage and overtime provisions of the [FLSA] runs anew with each paycheck,” Brief for Petitioner 35, Ledbetter urges that the same should be true in a Title VII pay case. Again, however, Ledbetter’s argument overlooks the fact that an FLSA minimum wage or overtime claim does not require proof of a specific intent to discriminate. See 29 U. S. C. §207 (establishing overtime rules); cf. §255(a) (establishing 2-year statute of limitations for FLSA claims, except for claims of a “willful violation,” which may be commenced within 3 years). Ledbetter is on firmer ground in suggesting that we look to cases arising under the National Labor Relations Act (NLRA) since the NLRA provided a model for Title VII’s remedial provisions and, like Title VII, requires the filing of a timely administrative charge (with the National Labor Relations Board) before suit may be maintained. Lorance, 490 U. S., at 909; Ford Motor Co. v. EEOC, 458 U. S. 219, 226, n. 8 (1982). Cf. 29 U. S. C. §160(b) (“[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board”). Ledbetter argues that the NLRA’s 6-month statute of limitations begins anew for each paycheck reflecting a prior violation of the statute, but our precedents suggest otherwise. In Machinists v. NLRB, 362 U. S. 411, 416–417 (1960), we held that “where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice[,] the use of the earlier unfair labor practice [merely] serves to cloak with illegality that which was otherwise lawful.” This interpretation corresponds closely to our analysis in Evans and Ricks and supports our holding in the present case. B Ledbetter, finally, makes a variety of policy arguments in favor of giving the alleged victims of pay discrimination more time before they are required to file a charge with the EEOC. Among other things, she claims that pay discrimination is harder to detect than other forms of employment discrimination.[Footnote 10] We are not in a position to evaluate Ledbetter’s policy arguments, and it is not our prerogative to change the way in which Title VII balances the interests of aggrieved employees against the interest in encouraging the “prompt processing of all charges of employment discrimination,” Mohasco, 447 U. S., at 825, and the interest in repose. Ledbetter’s policy arguments for giving special treatment to pay claims find no support in the statute and are inconsistent with our precedents.[Footnote 11] We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented to the EEOC within the period prescribed by statute. * * * For these reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Footnote 1 The parties assume that the EEOC charging period runs backwards from the date of the questionnaire, even though Ledbetter’s discriminatory pay claim was not added until the July 1998 formal charge. 421 F. 3d 1169, 1178 (CA11 2005). We likewise assume for the sake of argument that the filing of the questionnaire, rather than the formal charge, is the appropriate date. Footnote 2 After Lorance, Congress amended Title VII to cover the specific situation involved in that case. See 42 U. S. C. §2000e–5(e)(2) (allowing for Title VII liability arising from an intentionally discriminatory seniority system both at the time of its adoption and at the time of its application). The dissent attaches great significance to this amendment, suggesting that it shows that Lorance was wrongly reasoned as an initial matter. Post, at 10–12 (opinion of Ginsburg, J.). However, the very legislative history cited by the dissent explains that this amendment and the other 1991 Title VII amendments “ ‘expand[ed] the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.’ ” Post, at 11 (emphasis added). For present purposes, what is most important about the amendment in question is that it applied only to the adoption of a discriminatory seniority system, not to other types of employment discrimination. Evans and Ricks, upon which Lorance relied, 490 U. S., at 906–908, and which employed identical reasoning, were left in place, and these decisions are more than sufficient to support our holding today. Footnote 3 Of course, there may be instances where the elements forming a cause of action span more than 180 days. Say, for instance, an employer forms an illegal discriminatory intent towards an employee but does not act on it until 181 days later. The charging period would not begin to run until the employment practice was executed on day 181 because until that point the employee had no cause of action. The act and intent had not yet been joined. Here, by contrast, Ledbetter’s cause of action was fully formed and present at the time that the discriminatory employment actions were taken against her, at which point she could have, and should have, sued. Footnote 4 The dissent dismisses this concern, post, at 15–16, but this case illustrates the problems created by tardy lawsuits. Ledbetter’s claims of sex discrimination turned principally on the misconduct of a single Goodyear supervisor, who, Ledbetter testified, retaliated against her when she rejected his sexual advances during the early 1980’s, and did so again in the mid-1990’s when he falsified deficiency reports about her work. His misconduct, Ledbetter argues, was “a principal basis for [her] performance evaluation in 1997.” Brief for Petitioner 6; see also id., at 5–6, 8, 11 (stressing the same supervisor’s misconduct). Yet, by the time of trial, this supervisor had died and therefore could not testify. A timely charge might have permitted his evidence to be weighed contemporaneously. Footnote 5 That the focus in Bazemore was on a current violation, not the carrying forward of a past act of discrimination, was made clearly by the side opinion in the Court of Appeals: “[T]he majority holds, in effect, that because the pattern of discriminatory salaries here challenged originated before applicable provisions of the Civil Rights Act made their payment illegal, any ‘lingering effects’ of that earlier pattern cannot (presumably on an indefinitely maintained basis) be considered in assessing a challenge to post-act continuation of that pattern. “Hazelwood and Evans indeed made it clear that an employer cannot be found liable, or sanctioned with remedy, for employment decisions made before they were declared illegal or as to which the claimant has lost any right of action by lapse of time. For this reason it is generally true that, as the catch-phrase has it, Title VII imposed ‘no obligation to catch-up,’ i.e., affirmatively to remedy present effects of pre-Act discrimination, whether in composing a work force or otherwise. But those cases cannot be thought to insulate employment decisions that presently are illegal on the basis that at one time comparable decisions were legal when made by the particular employer. It is therefore one thing to say that an employer who upon the effective date of Title VII finds itself with a racially unbalanced work-force need not act affirmatively to redress the balance; and quite another to say that it may also continue to make discriminatory hiring decisions because it was by that means that its present work force was composed. It may not, in short, under the Hazelwood/Evans principle continue practices now violative simply because at one time they were not.” Bazemore v. Friday, 751 F. 2d 662, 695–696 (CA4 1984) (Phillips, J., concurring in part and dissenting in part) (emphasis in original; footnotes omitted). Footnote 6 The briefs filed with this Court in Bazemore v. Friday, 478 U. S. 385 (1986) (per curiam), further elucidate the point. The petitioners described the Service’s conduct as “[t]he continued use of a racially explicit base wage.” Brief for Petitioner Bazemore et al. in Bazemore v. Friday, O. T. 1985, No. 85–93, p. 33. The United States’ brief also properly distinguished the commission of a discrete discriminatory act with continuing adverse results from the intentional carrying forward of a discriminatory pay system. Brief for Federal Petitioners in Bazemore v. Friday, O. T. 1984, Nos. 85–93 and 85–428, p. 17. This case involves the former, not the latter. Footnote 7 Moreover, the proposed hostile salary environment claim would go far beyond Morgan’s limits. Morgan still required at least some of the discriminatorily-motivated acts predicate to a hostile work environment claim to occur within the charging period. 536 U. S., at 117 (“Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court” (emphasis added)). But the dissent would permit claims where no one acted in any way with an improper motive during the charging period. Post, at 7, 16. Footnote 8 The dissent admits as much, responding only that an employer could resort to equitable doctrines such as laches. Post, at 16. But first, as we have noted, Congress has already determined that defense to be insufficient. Supra, at 13. Second, it is far from clear that a suit filed under the dissent’s theory, alleging that a paycheck paid recently within the charging period was itself a freestanding violation of Title VII because it reflected the effects of 20-year-old discrimination, would even be barred by laches. Footnote 9 The Magistrate Judge recommended dismissal of Ledbetter’s EPA claim on the ground that Goodyear had demonstrated that the pay disparity resulted from Ledbetter’s consistently weak performance, not her sex. App. to Pet. for Cert. 71a–77a. The Magistrate Judge also recommended dismissing the Title VII disparate-pay claim on the same basis. Id., at 65a–69a. Ledbetter objected to the Magistrate Judge’s disposition of the Title VII and EPA claims, arguing that the Magistrate Judge had improperly resolved a disputed factual issue. See Plaintiff’s Objections to Magistrate Judge’s Report and Recommendation, 1 Record in No. 03–15246–G (CA11), Doc. 32. The District Court sustained this objection as to the “disparate pay” claim, but without specifically mentioning the EPA claim, which had been dismissed by the Magistrate Judge on the same basis. See App. to Pet. for Cert. 43a–44a. While the record is not entirely clear, it appears that at this point Ledbetter elected to abandon her EPA claim, proceeding to trial with only the Title VII disparate-pay claim, thus giving rise to the dispute the Court must now resolve. Footnote 10 We have previously declined to address whether Title VII suits are amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 114, n. 7 (2002). Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue. Footnote 11 Ledbetter argues that the EEOC’s endorsement of her approach in its Compliance Manual and in administrative adjudications merits deference. But we have previously declined to extend Chevron deference to the Compliance Manual, Morgan, supra, at 111, n. 6, and similarly decline to defer to the EEOC’s adjudicatory positions. The EEOC’s views in question are based on its misreading of Bazemore. See, e.g., Amft v. Mineta, No. 07A40116, 2006 WL 985183, *5 (EEOC Office of Fed. Operations, Apr. 6, 2006); Albritton v. Postmaster General, No. 01A44063, 2004 WL 2983682, *2 (EEOC Office of Fed. Operations, Dec. 17, 2004). Agencies have no special claim to deference in their interpretation of our decisions. Reno v. Bossier Parish School Bd., 528 U. S. 320, 336, n. 5 (2000). Nor do we see reasonable ambiguity in the statute itself, which makes no distinction between compensation and other sorts of claims and which clearly requires that discrete employment actions alleged to be unlawful be motivated “because of such individual’s … sex.” 42 U. S. C. §2000e–a(a)(1).
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551.US.877
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Given its policy of refusing to sell to retailers that discount its goods below suggested prices, petitioner (Leegin) stopped selling to respondent’s (PSKS) store. PSKS filed suit, alleging, inter alia, that Leegin violated the antitrust laws by entering into vertical agreements with its retailers to set minimum resale prices. The District Court excluded expert testimony about Leegin’s pricing policy’s procompetitive effects on the ground that Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373, makes it per se illegal under §1 of the Sherman Act for a manufacturer and its distributor to agree on the minimum price the distributor can charge for the manufacturer’s goods. At trial, PSKS alleged that Leegin and its retailers had agreed to fix prices, but Leegin argued that its pricing policy was lawful under §1. The jury found for PSKS. On appeal, the Fifth Circuit declined to apply the rule of reason to Leegin’s vertical price-fixing agreements and affirmed, finding that Dr. Miles’ per se rule rendered irrelevant any procompetitive justifications for Leegin’s policy. Held: Dr. Miles is overruled and vertical price restraints are to be judged by the rule of reason. Pp. 5–28. (a) The accepted standard for testing whether a practice restrains trade in violation of §1 is the rule of reason, which requires the factfinder to weigh “all of the circumstances,” Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 49, including “specific information about the relevant business” and “the restraint’s history, nature, and effect,” State Oil Co. v. Khan, 522 U. S. 3, 10. The rule distinguishes between restraints with anticompetitive effect that are harmful to the consumer and those with procompetitive effect that are in the consumer’s best interest. However, when a restraint is deemed “unlawful per se,” ibid., the need to study an individual restraint’s reasonableness in light of real market forces is eliminated, Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 723. Resort to per se rules is confined to restraints “that would always or almost always tend to restrict competition and decrease output.” Ibid. Thus, a per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue, see Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 9, and only if they can predict with confidence that the restraint would be invalidated in all or almost all instances under the rule of reason, see Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 344. Pp. 5–7. (b) Because the reasons upon which Dr. Miles relied do not justify a per se rule, it is necessary to examine, in the first instance, the economic effects of vertical agreements to fix minimum resale prices and to determine whether the per se rule is nonetheless appropriate. Were this Court considering the issue as an original matter, the rule of reason, not a per se rule of unlawfulness, would be the appropriate standard to judge vertical price restraints. Pp. 7–19. (1) Economics literature is replete with procompetitive justifications for a manufacturer’s use of resale price maintenance, and the few recent studies on the subject also cast doubt on the conclusion that the practice meets the criteria for a per se rule. The justifications for vertical price restraints are similar to those for other vertical restraints. Minimum resale price maintenance can stimulate interbrand competition among manufacturers selling different brands of the same type of product by reducing intrabrand competition among retailers selling the same brand. This is important because the antitrust laws’ “primary purpose … is to protect interbrand competition,” Khan, supra, at 15. A single manufacturer’s use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in services or promotional efforts that aid the manufacturer’s position as against rival manufacturers. Resale price maintenance may also give consumers more options to choose among low-price, low-service brands; high-price, high-service brands; and brands falling in between. Absent vertical price restraints, retail services that enhance interbrand competition might be underprovided because discounting retailers can free ride on retailers who furnish services and then capture some of the demand those services generate. Retail price maintenance can also increase interbrand competition by facilitating market entry for new firms and brands and by encouraging retailer services that would not be provided even absent free riding. Pp. 9–12. (2) Setting minimum resale prices may also have anticompetitive effects; and unlawful price fixing, designed solely to obtain monopoly profits, is an ever present temptation. Resale price maintenance may, for example, facilitate a manufacturer cartel or be used to organize retail cartels. It can also be abused by a powerful manufacturer or retailer. Thus, the potential anticompetitive consequences of vertical price restraints must not be ignored or underestimated. Pp. 12–14. (3) Notwithstanding the risks of unlawful conduct, it cannot be stated with any degree of confidence that retail price maintenance “always or almost always tend[s] to restrict competition and decrease output,” Business Electronics, supra, at 723. Vertical retail-price agreements have either procompetitive or anticompetitive effects, depending on the circumstances in which they were formed; and the limited empirical evidence available does not suggest efficient uses of the agreements are infrequent or hypothetical. A per se rule should not be adopted for administrative convenience alone. Such rules can be counterproductive, increasing the antitrust system’s total cost by prohibiting procompetitive conduct the antitrust laws should encourage. And a per se rule cannot be justified by the possibility of higher prices absent a further showing of anticompetitive conduct. The antitrust laws primarily are designed to protect interbrand competition from which lower prices can later result. Respondent’s argument overlooks that, in general, the interests of manufacturers and consumers are aligned with respect to retailer profit margins. Resale price maintenance has economic dangers. If the rule of reason were to apply, courts would have to be diligent in eliminating their anticompetitive uses from the market. Factors relevant to the inquiry are the number of manufacturers using the practice, the restraint’s source, and a manufacturer’s market power. The rule of reason is designed and used to ascertain whether transactions are anticompetitive or procompetitive. This standard principle applies to vertical price restraints. As courts gain experience with these restraints by applying the rule of reason over the course of decisions, they can establish the litigation structure to ensure the rule operates to eliminate anticompetitive restraints from the market and to provide more guidance to businesses. Pp. 14–19. (c) Stare decisis does not compel continued adherence to the per se rule here. Because the Sherman Act is treated as a common-law statute, its prohibition on “restraint[s] of trade” evolves to meet the dynamics of present economic conditions. The rule of reason’s case-by-case adjudication implements this common-law approach. Here, respected economics authorities suggest that the per se rule is inappropriate. And both the Department of Justice and the Federal Trade Commission recommend replacing the per se rule with the rule of reason. In addition, this Court has “overruled [its] precedents when subsequent cases have undermined their doctrinal underpinnings.” Dickerson v. United States, 530 U. S. 428, 443. It is not surprising that the Court has distanced itself from Dr. Miles’ rationales, for the case was decided not long after the Sherman Act was enacted, when the Court had little experience with antitrust analysis. Only eight years after Dr. Miles, the Court reined in the decision, holding that a manufacturer can suggest resale prices and refuse to deal with distributors who do not follow them, United States v. Colgate & Co., 250 U. S. 300, 307–308; and more recently the Court has tempered, limited, or overruled once strict vertical restraint prohibitions, see, e.g., GTE Sylvania, supra, at 57–59. The Dr. Miles rule is also inconsistent with a principled framework, for it makes little economic sense when analyzed with the Court’s other vertical restraint cases. Deciding that procompetitive effects of resale price maintenance are insufficient to overrule Dr. Miles would call into question cases such as Colgate and GTE Sylvania. Respondent’s arguments for reaffirming Dr. Miles based on stare decisis do not require a different result. Pp. 19–28. 171 Fed. Appx. 464, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
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In Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911), the Court established the rule that it is per se illegal under §1 of the Sherman Act, 15 U. S. C. §1, for a manufacturer to agree with its distributor to set the minimum price the distributor can charge for the manufacturer’s goods. The question presented by the instant case is whether the Court should overrule the per se rule and allow resale price maintenance agreements to be judged by the rule of reason, the usual standard applied to determine if there is a violation of §1. The Court has abandoned the rule of per se illegality for other vertical restraints a manufacturer imposes on its distributors. Respected economic analysts, furthermore, conclude that vertical price restraints can have procompetitive effects. We now hold that Dr. Miles should be overruled and that vertical price restraints are to be judged by the rule of reason. I Petitioner, Leegin Creative Leather Products, Inc. (Leegin), designs, manufactures, and distributes leather goods and accessories. In 1991, Leegin began to sell belts under the brand name “Brighton.” The Brighton brand has now expanded into a variety of women’s fashion accessories. It is sold across the United States in over 5,000 retail establishments, for the most part independent, small boutiques and specialty stores. Leegin’s president, Jerry Kohl, also has an interest in about 70 stores that sell Brighton products. Leegin asserts that, at least for its products, small retailers treat customers better, provide customers more services, and make their shopping experience more satisfactory than do larger, often impersonal retailers. Kohl explained: “[W]e want the consumers to get a different experience than they get in Sam’s Club or in Wal-Mart. And you can’t get that kind of experience or support or customer service from a store like Wal-Mart.” 5 Record 127. Respondent, PSKS, Inc. (PSKS), operates Kay’s Kloset, a women’s apparel store in Lewisville, Texas. Kay’s Kloset buys from about 75 different manufacturers and at one time sold the Brighton brand. It first started purchasing Brighton goods from Leegin in 1995. Once it began selling the brand, the store promoted Brighton. For example, it ran Brighton advertisements and had Brighton days in the store. Kay’s Kloset became the destination retailer in the area to buy Brighton products. Brighton was the store’s most important brand and once accounted for 40 to 50 percent of its profits. In 1997, Leegin instituted the “Brighton Retail Pricing and Promotion Policy.” 4 id., at 939. Following the policy, Leegin refused to sell to retailers that discounted Brighton goods below suggested prices. The policy contained an exception for products not selling well that the retailer did not plan on reordering. In the letter to retailers establishing the policy, Leegin stated: “In this age of mega stores like Macy’s, Bloomingdales, May Co. and others, consumers are perplexed by promises of product quality and support of product which we believe is lacking in these large stores. Consumers are further confused by the ever popular sale, sale, sale, etc. “We, at Leegin, choose to break away from the pack by selling [at] specialty stores; specialty stores that can offer the customer great quality merchandise, superb service, and support the Brighton product 365 days a year on a consistent basis. “We realize that half the equation is Leegin producing great Brighton product and the other half is you, our retailer, creating great looking stores selling our products in a quality manner.” Ibid. Leegin adopted the policy to give its retailers sufficient margins to provide customers the service central to its distribution strategy. It also expressed concern that discounting harmed Brighton’s brand image and reputation. A year after instituting the pricing policy Leegin introduced a marketing strategy known as the “Heart Store Program.” See id., at 962–972. It offered retailers incentives to become Heart Stores, and, in exchange, retailers pledged, among other things, to sell at Leegin’s suggested prices. Kay’s Kloset became a Heart Store soon after Leegin created the program. After a Leegin employee visited the store and found it unattractive, the parties appear to have agreed that Kay’s Kloset would not be a Heart Store beyond 1998. Despite losing this status, Kay’s Kloset continued to increase its Brighton sales. In December 2002, Leegin discovered Kay’s Kloset had been marking down Brighton’s entire line by 20 percent. Kay’s Kloset contended it placed Brighton products on sale to compete with nearby retailers who also were undercutting Leegin’s suggested prices. Leegin, nonetheless, requested that Kay’s Kloset cease discounting. Its request refused, Leegin stopped selling to the store. The loss of the Brighton brand had a considerable negative impact on the store’s revenue from sales. PSKS sued Leegin in the United States District Court for the Eastern District of Texas. It alleged, among other claims, that Leegin had violated the antitrust laws by “enter[ing] into agreements with retailers to charge only those prices fixed by Leegin.” Id., at 1236. Leegin planned to introduce expert testimony describing the procompetitive effects of its pricing policy. The District Court excluded the testimony, relying on the per se rule established by Dr. Miles. At trial PSKS argued that the Heart Store program, among other things, demonstrated Leegin and its retailers had agreed to fix prices. Leegin responded that it had established a unilateral pricing policy lawful under §1, which applies only to concerted action. See United States v. Colgate & Co., 250 U. S. 300, 307 (1919). The jury agreed with PSKS and awarded it $1.2 million. Pursuant to 15 U. S. C. §15(a), the District Court trebled the damages and reimbursed PSKS for its attorney’s fees and costs. It entered judgment against Leegin in the amount of $3,975,000.80. The Court of Appeals for the Fifth Circuit affirmed. 171 Fed. Appx. 464 (2006) (per curiam). On appeal Leegin did not dispute that it had entered into vertical price-fixing agreements with its retailers. Rather, it contended that the rule of reason should have applied to those agreements. The Court of Appeals rejected this argument. Id., at 466–467. It was correct to explain that it remained bound by Dr. Miles “[b]ecause [the Supreme] Court has consistently applied the per se rule to [vertical minimum price-fixing] agreements.” 171 Fed. Appx., at 466. On this premise the Court of Appeals held that the District Court did not abuse its discretion in excluding the testimony of Leegin’s economic expert, for the per se rule rendered irrelevant any procompetitive justifications for Leegin’s pricing policy. Id., at 467. We granted certiorari to determine whether vertical minimum resale price maintenance agreements should continue to be treated as per se unlawful. 549 U. S. ___ (2006). II Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.” Ch. 647, 26 Stat. 209, as amended, 15 U. S. C. §1. While §1 could be interpreted to proscribe all contracts, see, e.g., Board of Trade of Chicago v. United States, 246 U. S. 231, 238 (1918), the Court has never “taken a literal approach to [its] language,” Texaco Inc. v. Dagher, 547 U. S. 1, 5 (2006). Rather, the Court has repeated time and again that §1 “outlaw[s] only unreasonable restraints.” State Oil Co. v. Khan, 522 U. S. 3, 10 (1997). The rule of reason is the accepted standard for testing whether a practice restrains trade in violation of §1. See Texaco, supra, at 5. “Under this rule, the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition.” Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 49 (1977). Appropriate factors to take into account include “specific information about the relevant business” and “the restraint’s history, nature, and effect.” Khan, supra, at 10. Whether the businesses involved have market power is a further, significant consideration. See, e.g., Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 768 (1984) (equating the rule of reason with “an inquiry into market power and market structure designed to assess [a restraint’s] actual effect”); see also Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U. S. 28, 45–46 (2006). In its design and function the rule distinguishes between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer’s best interest. The rule of reason does not govern all restraints. Some types “are deemed unlawful per se.” Khan, supra, at 10. The per se rule, treating categories of restraints as necessarily illegal, eliminates the need to study the reasonableness of an individual restraint in light of the real market forces at work, Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 723 (1988); and, it must be acknowledged, the per se rule can give clear guidance for certain conduct. Restraints that are per se unlawful include horizontal agreements among competitors to fix prices, see Texaco, supra, at 5, or to divide markets, see Palmer v. BRG of Ga., Inc., 498 U. S. 46, 49–50 (1990) (per curiam). Resort to per se rules is confined to restraints, like those mentioned, “that would always or almost always tend to restrict competition and decrease output.” Business Electronics, supra, at 723 (internal quotation marks omitted). To justify a per se prohibition a restraint must have “manifestly anticompetitive” effects, GTE Sylvania, supra, at 50, and “lack … any redeeming virtue,” Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U. S. 284, 289 (1985) (internal quotation marks omitted). As a consequence, the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue, see Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U. S. 1, 9 (1979), and only if courts can predict with confidence that it would be invalidated in all or almost all instances under the rule of reason, see Arizona v. Maricopa County Medical Soc., 457 U. S. 332, 344 (1982). It should come as no surprise, then, that “we have expressed reluctance to adopt per se rules with regard to restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious.” Khan, supra, at 10 (internal quotation marks omitted); see also White Motor Co. v. United States, 372 U. S. 253, 263 (1963) (refusing to adopt a per se rule for a vertical nonprice restraint because of the uncertainty concerning whether this type of restraint satisfied the demanding standards necessary to apply a per se rule). And, as we have stated, a “departure from the rule-of-reason standard must be based upon demonstrable economic effect rather than . . . upon formalistic line drawing.” GTE Sylvania, supra, at 58–59. III The Court has interpreted Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911), as establishing a per se rule against a vertical agreement between a manufacturer and its distributor to set minimum resale prices. See, e.g., Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 761 (1984). In Dr. Miles the plaintiff, a manufacturer of medicines, sold its products only to distributors who agreed to resell them at set prices. The Court found the manufacturer’s control of resale prices to be unlawful. It relied on the common-law rule that “a general restraint upon alienation is ordinarily invalid.” 220 U. S., at 404–405. The Court then explained that the agreements would advantage the distributors, not the manufacturer, and were analogous to a combination among competing distributors, which the law treated as void. Id., at 407–408. The reasoning of the Court’s more recent jurisprudence has rejected the rationales on which Dr. Miles was based. By relying on the common-law rule against restraints on alienation, id., at 404–405, the Court justified its decision based on “formalistic” legal doctrine rather than “demonstrable economic effect,” GTE Sylvania, supra, at 58–59. The Court in Dr. Miles relied on a treatise published in 1628, but failed to discuss in detail the business reasons that would motivate a manufacturer situated in 1911 to make use of vertical price restraints. Yet the Sherman Act’s use of “restraint of trade” “invokes the common law itself, … not merely the static content that the common law had assigned to the term in 1890.” Business Electronics, supra, at 732. The general restraint on alienation, especially in the age when then-Justice Hughes used the term, tended to evoke policy concerns extraneous to the question that controls here. Usually associated with land, not chattels, the rule arose from restrictions removing real property from the stream of commerce for generations. The Court should be cautious about putting dispositive weight on doctrines from antiquity but of slight relevance. We reaffirm that “the state of the common law 400 or even 100 years ago is irrelevant to the issue before us: the effect of the antitrust laws upon vertical distributional restraints in the American economy today.” GTE Sylvania, 433 U. S., at 53, n. 21 (internal quotation marks omitted). Dr. Miles, furthermore, treated vertical agreements a manufacturer makes with its distributors as analogous to a horizontal combination among competing distributors. See 220 U. S., at 407–408. In later cases, however, the Court rejected the approach of reliance on rules governing horizontal restraints when defining rules applicable to vertical ones. See, e.g., Business Electronics, supra, at 734 (disclaiming the “notion of equivalence between the scope of horizontal per se illegality and that of vertical per se illegality”); Maricopa County, supra, at 348, n. 18 (noting that “horizontal restraints are generally less defensible than vertical restraints”). Our recent cases formulate antitrust principles in accordance with the appreciated differences in economic effect between vertical and horizontal agreements, differences the Dr. Miles Court failed to consider. The reasons upon which Dr. Miles relied do not justify a per se rule. As a consequence, it is necessary to examine, in the first instance, the economic effects of vertical agreements to fix minimum resale prices, and to determine whether the per se rule is nonetheless appropriate. See Business Electronics, 485 U. S., at 726. A Though each side of the debate can find sources to support its position, it suffices to say here that economics literature is replete with procompetitive justifications for a manufacturer’s use of resale price maintenance. See, e.g., Brief for Economists as Amici Curiae 16 (“In the theoretical literature, it is essentially undisputed that minimum [resale price maintenance] can have procompetitive effects and that under a variety of market conditions it is unlikely to have anticompetitive effects”); Brief for United States as Amicus Curiae 9 (“[T]here is a widespread consensus that permitting a manufacturer to control the price at which its goods are sold may promote interbrand competition and consumer welfare in a variety of ways”); ABA Section of Antitrust Law, Antitrust Law and Economics of Product Distribution 76 (2006) (“[T]he bulk of the economic literature on [resale price maintenance] suggests that [it] is more likely to be used to enhance efficiency than for anticompetitive purposes”); see also H. Hovenkamp, The Antitrust Enterprise: Principle and Execution 184–191 (2005) (hereinafter Hovenkamp); R. Bork, The Antitrust Paradox 288–291 (1978) (hereinafter Bork). Even those more skeptical of resale price maintenance acknowledge it can have procompetitive effects. See, e.g., Brief for William S. Comanor et al. as Amici Curiae 3 (“[G]iven [the] diversity of effects [of resale price maintenance], one could reasonably take the position that a rule of reason rather than a per se approach is warranted”); F.M. Scherer & D. Ross, Industrial Market Structure and Economic Performance 558 (3d ed. 1990) (hereinafter Scherer & Ross) (“The overall balance between benefits and costs [of resale price maintenance] is probably close”). The few recent studies documenting the competitive effects of resale price maintenance also cast doubt on the conclusion that the practice meets the criteria for a per se rule. See T. Overstreet, Resale Price Maintenance: Economic Theories and Empirical Evidence 170 (1983) (hereinafter Overstreet) (noting that “[e]fficient uses of [resale price maintenance] are evidently not unusual or rare”); see also Ippolito, Resale Price Maintenance: Empirical Evidence From Litigation, 34 J. Law & Econ. 263, 292–293 (1991) (hereinafter Ippolito). The justifications for vertical price restraints are similar to those for other vertical restraints. See GTE Sylvania, 433 U. S., at 54–57. Minimum resale price maintenance can stimulate interbrand competition—the competition among manufacturers selling different brands of the same type of product—by reducing intrabrand competition—the competition among retailers selling the same brand. See id., at 51–52. The promotion of interbrand competition is important because “the primary purpose of the antitrust laws is to protect [this type of] competition.” Khan, 522 U. S., at 15. A single manufacturer’s use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in tangible or intangible services or promotional efforts that aid the manufacturer’s position as against rival manufacturers. Resale price maintenance also has the potential to give consumers more options so that they can choose among low-price, low-service brands; high-price, high-service brands; and brands that fall in between. Absent vertical price restraints, the retail services that enhance interbrand competition might be underprovided. This is because discounting retailers can free ride on retailers who furnish services and then capture some of the increased demand those services generate. GTE Sylvania, supra, at 55. Consumers might learn, for example, about the benefits of a manufacturer’s product from a retailer that invests in fine showrooms, offers product demonstrations, or hires and trains knowledgeable employees. R. Posner, Antitrust Law 172–173 (2d ed. 2001) (hereinafter Posner). Or consumers might decide to buy the product because they see it in a retail establishment that has a reputation for selling high-quality merchandise. Marvel & McCafferty, Resale Price Maintenance and Quality Certification, 15 Rand J. Econ. 346, 347–349 (1984) (hereinafter Marvel & McCafferty). If the consumer can then buy the product from a retailer that discounts because it has not spent capital providing services or developing a quality reputation, the high-service retailer will lose sales to the discounter, forcing it to cut back its services to a level lower than consumers would otherwise prefer. Minimum resale price maintenance alleviates the problem because it prevents the discounter from undercutting the service provider. With price competition decreased, the manufacturer’s retailers compete among themselves over services. Resale price maintenance, in addition, can increase interbrand competition by facilitating market entry for new firms and brands. “[N]ew manufacturers and manufacturers entering new markets can use the restrictions in order to induce competent and aggressive retailers to make the kind of investment of capital and labor that is often required in the distribution of products unknown to the consumer.” GTE Sylvania, supra, at 55; see Marvel & McCafferty 349 (noting that reliance on a retailer’s reputation “will decline as the manufacturer’s brand becomes better known, so that [resale price maintenance] may be particularly important as a competitive device for new entrants”). New products and new brands are essential to a dynamic economy, and if markets can be penetrated by using resale price maintenance there is a procompetitive effect. Resale price maintenance can also increase interbrand competition by encouraging retailer services that would not be provided even absent free riding. It may be difficult and inefficient for a manufacturer to make and enforce a contract with a retailer specifying the different services the retailer must perform. Offering the retailer a guaranteed margin and threatening termination if it does not live up to expectations may be the most efficient way to expand the manufacturer’s market share by inducing the retailer’s performance and allowing it to use its own initiative and experience in providing valuable services. See Mathewson & Winter, The Law and Economics of Resale Price Maintenance, 13 Rev. Indus. Org. 57, 74–75 (1998) (hereinafter Mathewson & Winter); Klein & Murphy, Vertical Restraints as Contract Enforcement Mechanisms, 31 J. Law & Econ. 265, 295 (1988); see also Deneckere, Marvel, & Peck, Demand Uncertainty, Inventories, and Resale Price Maintenance, 111 Q. J. Econ. 885, 911 (1996) (noting that resale price maintenance may be beneficial to motivate retailers to stock adequate inventories of a manufacturer’s goods in the face of uncertain consumer demand). B While vertical agreements setting minimum resale prices can have procompetitive justifications, they may have anticompetitive effects in other cases; and unlawful price fixing, designed solely to obtain monopoly profits, is an ever present temptation. Resale price maintenance may, for example, facilitate a manufacturer cartel. See Business Electronics, 485 U. S., at 725. An unlawful cartel will seek to discover if some manufacturers are undercutting the cartel’s fixed prices. Resale price maintenance could assist the cartel in identifying price-cutting manufacturers who benefit from the lower prices they offer. Resale price maintenance, furthermore, could discourage a manufacturer from cutting prices to retailers with the concomitant benefit of cheaper prices to consumers. See ibid.; see also Posner 172; Overstreet 19–23. Vertical price restraints also “might be used to organize cartels at the retailer level.” Business Electronics, supra, at 725–726. A group of retailers might collude to fix prices to consumers and then compel a manufacturer to aid the unlawful arrangement with resale price maintenance. In that instance the manufacturer does not establish the practice to stimulate services or to promote its brand but to give inefficient retailers higher profits. Retailers with better distribution systems and lower cost structures would be prevented from charging lower prices by the agreement. See Posner 172; Overstreet 13–19. Historical examples suggest this possibility is a legitimate concern. See, e.g., Marvel & McCafferty, The Welfare Effects of Resale Price Maintenance, 28 J. Law & Econ. 363, 373 (1985) (hereinafter Marvel) (providing an example of the power of the National Association of Retail Druggists to compel manufacturers to use resale price maintenance); Hovenkamp 186 (suggesting that the retail druggists in Dr. Miles formed a cartel and used manufacturers to enforce it). A horizontal cartel among competing manufacturers or competing retailers that decreases output or reduces competition in order to increase price is, and ought to be, per se unlawful. See Texaco, 547 U. S., at 5; GTE Sylvania, 433 U. S., at 58, n. 28. To the extent a vertical agreement setting minimum resale prices is entered upon to facilitate either type of cartel, it, too, would need to be held unlawful under the rule of reason. This type of agreement may also be useful evidence for a plaintiff attempting to prove the existence of a horizontal cartel. Resale price maintenance, furthermore, can be abused by a powerful manufacturer or retailer. A dominant retailer, for example, might request resale price maintenance to forestall innovation in distribution that decreases costs. A manufacturer might consider it has little choice but to accommodate the retailer’s demands for vertical price restraints if the manufacturer believes it needs access to the retailer’s distribution network. See Overstreet 31; 8 P. Areeda & H. Hovenkamp, Antitrust Law 47 (2d ed. 2004) (hereinafter Areeda & Hovenkamp); cf. Toys “R” Us, Inc. v. FTC, 221 F. 3d 928, 937–938 (CA7 2000). A manufacturer with market power, by comparison, might use resale price maintenance to give retailers an incentive not to sell the products of smaller rivals or new entrants. See, e.g., Marvel 366–368. As should be evident, the potential anticompetitive consequences of vertical price restraints must not be ignored or underestimated. C Notwithstanding the risks of unlawful conduct, it cannot be stated with any degree of confidence that resale price maintenance “always or almost always tend[s] to restrict competition and decrease output.” Business Electronics, supra, at 723 (internal quotation marks omitted). Vertical agreements establishing minimum resale prices can have either procompetitive or anticompetitive effects, depending upon the circumstances in which they are formed. And although the empirical evidence on the topic is limited, it does not suggest efficient uses of the agreements are infrequent or hypothetical. See Overstreet 170; see also id., at 80 (noting that for the majority of enforcement actions brought by the Federal Trade Commission between 1965 and 1982, “the use of [resale price maintenance] was not likely motivated by collusive dealers who had successfully coerced their suppliers”); Ippolito 292 (reaching a similar conclusion). As the rule would proscribe a significant amount of procompetitive conduct, these agreements appear ill suited for per se condemnation. Respondent contends, nonetheless, that vertical price restraints should be per se unlawful because of the administrative convenience of per se rules. See, e.g., GTE Sylvania, supra, at 50, n. 16 (noting “per se rules tend to provide guidance to the business community and to minimize the burdens on litigants and the judicial system”). That argument suggests per se illegality is the rule rather than the exception. This misinterprets our antitrust law. Per se rules may decrease administrative costs, but that is only part of the equation. Those rules can be counterproductive. They can increase the total cost of the antitrust system by prohibiting procompetitive conduct the antitrust laws should encourage. See Easterbrook, Vertical Arrangements and the Rule of Reason, 53 Antitrust L. J. 135, 158 (1984) (hereinafter Easterbrook). They also may increase litigation costs by promoting frivolous suits against legitimate practices. The Court has thus explained that administrative “advantages are not sufficient in themselves to justify the creation of per se rules,” GTE Sylvania, 433 U. S., at 50, n. 16, and has relegated their use to restraints that are “manifestly anticompetitive,” id., at 49–50. Were the Court now to conclude that vertical price restraints should be per se illegal based on administrative costs, we would undermine, if not overrule, the traditional “demanding standards” for adopting per se rules. Id., at 50. Any possible reduction in administrative costs cannot alone justify the Dr. Miles rule. Respondent also argues the per se rule is justified because a vertical price restraint can lead to higher prices for the manufacturer’s goods. See also Overstreet 160 (noting that “price surveys indicate that [resale price maintenance] in most cases increased the prices of products sold”). Respondent is mistaken in relying on pricing effects absent a further showing of anticompetitive conduct. Cf. id., at 106 (explaining that price surveys “do not necessarily tell us anything conclusive about the welfare effects of [resale price maintenance] because the results are generally consistent with both procompetitive and anticompetitive theories”). For, as has been indicated already, the antitrust laws are designed primarily to protect interbrand competition, from which lower prices can later result. See Khan, 522 U. S., at 15. The Court, moreover, has evaluated other vertical restraints under the rule of reason even though prices can be increased in the course of promoting procompetitive effects. See, e.g., Business Electronics, 485 U. S., at 728. And resale price maintenance may reduce prices if manufacturers have resorted to costlier alternatives of controlling resale prices that are not per se unlawful. See infra, at 22–25; see also Marvel 371. Respondent’s argument, furthermore, overlooks that, in general, the interests of manufacturers and consumers are aligned with respect to retailer profit margins. The difference between the price a manufacturer charges retailers and the price retailers charge consumers represents part of the manufacturer’s cost of distribution, which, like any other cost, the manufacturer usually desires to minimize. See GTE Sylvania, 433 U. S., at 56, n. 24; see also id., at 56 (“Economists … have argued that manufacturers have an economic interest in maintaining as much intrabrand competition as is consistent with the efficient distribution of their products”). A manufacturer has no incentive to overcompensate retailers with unjustified margins. The retailers, not the manufacturer, gain from higher retail prices. The manufacturer often loses; interbrand competition reduces its competitiveness and market share because consumers will “substitute a different brand of the same product.” Id., at 52, n. 19; see Business Electronics, supra, at 725. As a general matter, therefore, a single manufacturer will desire to set minimum resale prices only if the “increase in demand resulting from enhanced service . . . will more than offset a negative impact on demand of a higher retail price.” Mathewson & Winter 67. The implications of respondent’s position are far reaching. Many decisions a manufacturer makes and carries out through concerted action can lead to higher prices. A manufacturer might, for example, contract with different suppliers to obtain better inputs that improve product quality. Or it might hire an advertising agency to promote awareness of its goods. Yet no one would think these actions violate the Sherman Act because they lead to higher prices. The antitrust laws do not require manufacturers to produce generic goods that consumers do not know about or want. The manufacturer strives to improve its product quality or to promote its brand because it believes this conduct will lead to increased demand despite higher prices. The same can hold true for resale price maintenance. Resale price maintenance, it is true, does have economic dangers. If the rule of reason were to apply to vertical price restraints, courts would have to be diligent in eliminating their anticompetitive uses from the market. This is a realistic objective, and certain factors are relevant to the inquiry. For example, the number of manufacturers that make use of the practice in a given industry can provide important instruction. When only a few manufacturers lacking market power adopt the practice, there is little likelihood it is facilitating a manufacturer cartel, for a cartel then can be undercut by rival manufacturers. See Overstreet 22; Bork 294. Likewise, a retailer cartel is unlikely when only a single manufacturer in a competitive market uses resale price maintenance. Interbrand competition would divert consumers to lower priced substitutes and eliminate any gains to retailers from their price-fixing agreement over a single brand. See Posner 172; Bork 292. Resale price maintenance should be subject to more careful scrutiny, by contrast, if many competing manufacturers adopt the practice. Cf. Scherer & Ross 558 (noting that “except when [resale price maintenance] spreads to cover the bulk of an industry’s output, depriving consumers of a meaningful choice between high-service and low-price outlets, most [resale price maintenance arrangements] are probably innocuous”); Easterbrook 162 (suggesting that “every one of the potentially-anticompetitive outcomes of vertical arrangements depends on the uniformity of the practice”). The source of the restraint may also be an important consideration. If there is evidence retailers were the impetus for a vertical price restraint, there is a greater likelihood that the restraint facilitates a retailer cartel or supports a dominant, inefficient retailer. See Brief for William S. Comanor et al. as Amici Curiae 7–8. If, by contrast, a manufacturer adopted the policy independent of retailer pressure, the restraint is less likely to promote anticompetitive conduct. Cf. Posner 177 (“It makes all the difference whether minimum retail prices are imposed by the manufacturer in order to evoke point-of-sale services or by the dealers in order to obtain monopoly profits”). A manufacturer also has an incentive to protest inefficient retailer-induced price restraints because they can harm its competitive position. As a final matter, that a dominant manufacturer or retailer can abuse resale price maintenance for anticompetitive purposes may not be a serious concern unless the relevant entity has market power. If a retailer lacks market power, manufacturers likely can sell their goods through rival retailers. See also Business Electronics, supra, at 727, n. 2 (noting “[r]etail market power is rare, because of the usual presence of interbrand competition and other dealers”). And if a manufacturer lacks market power, there is less likelihood it can use the practice to keep competitors away from distribution outlets. The rule of reason is designed and used to eliminate anticompetitive transactions from the market. This standard principle applies to vertical price restraints. A party alleging injury from a vertical agreement setting minimum resale prices will have, as a general matter, the information and resources available to show the existence of the agreement and its scope of operation. As courts gain experience considering the effects of these restraints by applying the rule of reason over the course of decisions, they can establish the litigation structure to ensure the rule operates to eliminate anticompetitive restraints from the market and to provide more guidance to businesses. Courts can, for example, devise rules over time for offering proof, or even presumptions where justified, to make the rule of reason a fair and efficient way to prohibit anticompetitive restraints and to promote procompetitive ones. For all of the foregoing reasons, we think that were the Court considering the issue as an original matter, the rule of reason, not a per se rule of unlawfulness, would be the appropriate standard to judge vertical price restraints. IV We do not write on a clean slate, for the decision in Dr. Miles is almost a century old. So there is an argument for its retention on the basis of stare decisis alone. Even if Dr. Miles established an erroneous rule, “[s]tare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Khan, 522 U. S., at 20 (internal quotation marks omitted). And concerns about maintaining settled law are strong when the question is one of statutory interpretation. See, e.g., Hohn v. United States, 524 U. S. 236, 251 (1998). Stare decisis is not as significant in this case, however, because the issue before us is the scope of the Sherman Act. Khan, supra, at 20 (“[T]he general presumption that legislative changes should be left to Congress has less force with respect to the Sherman Act”). From the beginning the Court has treated the Sherman Act as a common-law statute. See National Soc. of Professional Engineers v. United States, 435 U. S. 679, 688 (1978); see also Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 98, n. 42 (1981) (“In antitrust, the federal courts … act more as common-law courts than in other areas governed by federal statute”). Just as the common law adapts to modern understanding and greater experience, so too does the Sherman Act’s prohibition on “restraint[s] of trade” evolve to meet the dynamics of present economic conditions. The case-by-case adjudication contemplated by the rule of reason has implemented this common-law approach. See National Soc. of Professional Engineers, supra, at 688. Likewise, the boundaries of the doctrine of per se illegality should not be immovable. For “[i]t would make no sense to create out of the single term ‘restraint of trade’ a chronologically schizoid statute, in which a ‘rule of reason’ evolves with new circumstance and new wisdom, but a line of per se illegality remains forever fixed where it was.” Business Electronics, 485 U. S., at 732. A Stare decisis, we conclude, does not compel our continued adherence to the per se rule against vertical price restraints. As discussed earlier, respected authorities in the economics literature suggest the per se rule is inappropriate, and there is now widespread agreement that resale price maintenance can have procompetitive effects. See, e.g., Brief for Economists as Amici Curiae 16. It is also significant that both the Department of Justice and the Federal Trade Commission—the antitrust enforcement agencies with the ability to assess the long-term impacts of resale price maintenance—have recommended that this Court replace the per se rule with the traditional rule of reason. See Brief for United States as Amicus Curiae 6. In the antitrust context the fact that a decision has been “called into serious question” justifies our reevaluation of it. Khan, supra, at 21. Other considerations reinforce the conclusion that Dr. Miles should be overturned. Of most relevance, “we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings.” Dickerson v. United States, 530 U. S. 428, 443 (2000). The Court’s treatment of vertical restraints has progressed away from Dr. Miles’ strict approach. We have distanced ourselves from the opinion’s rationales. See supra, at 7–8; see also Khan, supra, at 21 (overruling a case when “the views underlying [it had been] eroded by this Court’s precedent”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 480–481 (1989) (same). This is unsurprising, for the case was decided not long after enactment of the Sherman Act when the Court had little experience with antitrust analysis. Only eight years after Dr. Miles, moreover, the Court reined in the decision by holding that a manufacturer can announce suggested resale prices and refuse to deal with distributors who do not follow them. Colgate, 250 U. S., at 307–308. In more recent cases the Court, following a common-law approach, has continued to temper, limit, or overrule once strict prohibitions on vertical restraints. In 1977, the Court overturned the per se rule for vertical nonprice restraints, adopting the rule of reason in its stead. GTE Sylvania, 433 U. S., at 57–59 (overruling United States v. Arnold, Schwinn & Co., 388 U. S. 365 (1967)); see also 433 U. S., at 58, n. 29 (noting “that the advantages of vertical restrictions should not be limited to the categories of new entrants and failing firms”). While the Court in a footnote in GTE Sylvania suggested that differences between vertical price and nonprice restraints could support different legal treatment, see 433 U. S., at 51, n. 18, the central part of the opinion relied on authorities and arguments that find unequal treatment “difficult to justify,” id., at 69–70 (White, J., concurring in judgment). Continuing in this direction, in two cases in the 1980’s the Court defined legal rules to limit the reach of Dr. Miles and to accommodate the doctrines enunciated in GTE Sylvania and Colgate. See Business Electronics, supra, at 726–728; Monsanto, 465 U. S., at 763–764. In Monsanto, the Court required that antitrust plaintiffs alleging a §1 price-fixing conspiracy must present evidence tending to exclude the possibility a manufacturer and its distributors acted in an independent manner. Id., at 764. Unlike Justice Brennan’s concurrence, which rejected arguments that Dr. Miles should be overruled, see 465 U. S., at 769, the Court “decline[d] to reach the question” whether vertical agreements fixing resale prices always should be unlawful because neither party suggested otherwise, id., at 761–762, n. 7. In Business Electronics the Court further narrowed the scope of Dr. Miles. It held that the per se rule applied only to specific agreements over price levels and not to an agreement between a manufacturer and a distributor to terminate a price-cutting distributor. 485 U. S., at 726–727, 735–736. Most recently, in 1997, after examining the issue of vertical maximum price-fixing agreements in light of commentary and real experience, the Court overruled a 29-year-old precedent treating those agreements as per se illegal. Khan, 522 U. S., at 22 (overruling Albrecht v. Herald Co., 390 U. S. 145 (1968)). It held instead that they should be evaluated under the traditional rule of reason. 522 U. S., at 22. Our continued limiting of the reach of the decision in Dr. Miles and our recent treatment of other vertical restraints justify the conclusion that Dr. Miles should not be retained. The Dr. Miles rule is also inconsistent with a principled framework, for it makes little economic sense when analyzed with our other cases on vertical restraints. If we were to decide the procompetitive effects of resale price maintenance were insufficient to overrule Dr. Miles, then cases such as Colgate and GTE Sylvania themselves would be called into question. These later decisions, while they may result in less intrabrand competition, can be justified because they permit manufacturers to secure the procompetitive benefits associated with vertical price restraints through other methods. The other methods, however, could be less efficient for a particular manufacturer to establish and sustain. The end result hinders competition and consumer welfare because manufacturers are forced to engage in second-best alternatives and because consumers are required to shoulder the increased expense of the inferior practices. The manufacturer has a number of legitimate options to achieve benefits similar to those provided by vertical price restraints. A manufacturer can exercise its Colgate right to refuse to deal with retailers that do not follow its suggested prices. See 250 U. S., at 307. The economic effects of unilateral and concerted price setting are in general the same. See, e.g., Monsanto, 465 U. S., at 762–764. The problem for the manufacturer is that a jury might conclude its unilateral policy was really a vertical agreement, subjecting it to treble damages and potential criminal liability. Ibid.; Business Electronics, supra, at 728. Even with the stringent standards in Monsanto and Business Electronics, this danger can lead, and has led, rational manufacturers to take wasteful measures. See, e.g., Brief for PING, Inc., as Amicus Curiae 9–18. A manufacturer might refuse to discuss its pricing policy with its distributors except through counsel knowledgeable of the subtle intricacies of the law. Or it might terminate longstanding distributors for minor violations without seeking an explanation. See ibid. The increased costs these burdensome measures generate flow to consumers in the form of higher prices. Furthermore, depending on the type of product it sells, a manufacturer might be able to achieve the procompetitive benefits of resale price maintenance by integrating downstream and selling its products directly to consumers. Dr. Miles tilts the relative costs of vertical integration and vertical agreement by making the former more attractive based on the per se rule, not on real market conditions. See Business Electronics, supra, at 725; see generally Coase, The Nature of the Firm, 4 Economica, New Series 386 (1937). This distortion might lead to inefficient integration that would not otherwise take place, so that consumers must again suffer the consequences of the suboptimal distribution strategy. And integration, unlike vertical price restraints, eliminates all intrabrand competition. See, e.g., GTE Sylvania, 433 U. S., at 57, n. 26. There is yet another consideration. A manufacturer can impose territorial restrictions on distributors and allow only one distributor to sell its goods in a given region. Our cases have recognized, and the economics literature confirms, that these vertical nonprice restraints have impacts similar to those of vertical price restraints; both reduce intrabrand competition and can stimulate retailer services. See, e.g., Business Electronics, supra, at 728; Monsanto, supra, at 762–763; see also Brief for Economists as Amici Curiae 17–18. Cf. Scherer & Ross 560 (noting that vertical nonprice restraints “can engender inefficiencies at least as serious as those imposed upon the consumer by resale price maintenance”); Steiner, How Manufacturers Deal with the Price-Cutting Retailer: When Are Vertical Restraints Efficient?, 65 Antitrust L. J. 407, 446–447 (1997) (indicating that “antitrust law should recognize that the consumer interest is often better served by [resale price maintenance]—contrary to its per se illegality and the rule-of-reason status of vertical nonprice restraints”). The same legal standard (per se unlawfulness) applies to horizontal market division and horizontal price fixing because both have similar economic effect. There is likewise little economic justification for the current differential treatment of vertical price and nonprice restraints. Furthermore, vertical nonprice restraints may prove less efficient for inducing desired services, and they reduce intrabrand competition more than vertical price restraints by eliminating both price and service competition. See Brief for Economists as Amici Curiae 17–18. In sum, it is a flawed antitrust doctrine that serves the interests of lawyers—by creating legal distinctions that operate as traps for the unwary—more than the interests of consumers—by requiring manufacturers to choose second-best options to achieve sound business objectives. B Respondent’s arguments for reaffirming Dr. Miles on the basis of stare decisis do not require a different result. Respondent looks to congressional action concerning vertical price restraints. In 1937, Congress passed the Miller-Tydings Fair Trade Act, 50 Stat. 693, which made vertical price restraints legal if authorized by a fair trade law enacted by a State. Fifteen years later, Congress expanded the exemption to permit vertical price-setting agreements between a manufacturer and a distributor to be enforced against other distributors not involved in the agreement. McGuire Act, 66 Stat. 632. In 1975, however, Congress repealed both Acts. Consumer Goods Pricing Act, 89 Stat. 801. That the Dr. Miles rule applied to vertical price restraints in 1975, according to respondent, shows Congress ratified the rule. This is not so. The text of the Consumer Goods Pricing Act did not codify the rule of per se illegality for vertical price restraints. It rescinded statutory provisions that made them per se legal. Congress once again placed these restraints within the ambit of §1 of the Sherman Act. And, as has been discussed, Congress intended §1 to give courts the ability “to develop governing principles of law” in the common-law tradition. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 643 (1981); see Business Electronics, 485 U. S., at 731 (“The changing content of the term ‘restraint of trade’ was well recognized at the time the Sherman Act was enacted”). Congress could have set the Dr. Miles rule in stone, but it chose a more flexible option. We respect its decision by analyzing vertical price restraints, like all restraints, in conformance with traditional §1 principles, including the principle that our antitrust doctrines “evolv[e] with new circumstances and new wisdom.” Business Electronics, supra, at 732; see also Easterbrook 139. The rule of reason, furthermore, is not inconsistent with the Consumer Goods Pricing Act. Unlike the earlier congressional exemption, it does not treat vertical price restraints as per se legal. In this respect, the justifications for the prior exemption are illuminating. Its goal “was to allow the States to protect small retail establishments that Congress thought might otherwise be driven from the marketplace by large-volume discounters.” California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 102 (1980). The state fair trade laws also appear to have been justified on similar grounds. See Areeda & Hovenkamp 298. The rationales for these provisions are foreign to the Sherman Act. Divorced from competition and consumer welfare, they were designed to save inefficient small retailers from their inability to compete. The purpose of the antitrust laws, by contrast, is “the protection of competition, not competitors.” Atlantic Richfield Co. v. USA Petroleum Co., 495 U. S. 328, 338 (1990) (internal quotation marks omitted). To the extent Congress repealed the exemption for some vertical price restraints to end its prior practice of encouraging anticompetitive conduct, the rule of reason promotes the same objective. Respondent also relies on several congressional appropriations in the mid-1980’s in which Congress did not permit the Department of Justice or the Federal Trade Commission to use funds to advocate overturning Dr. Miles. See, e.g., 97 Stat. 1071. We need not pause long in addressing this argument. The conditions on funding are no longer in place, see, e.g., Brief for United States as Amicus Curiae 21, and they were ambiguous at best. As much as they might show congressional approval for Dr. Miles, they might demonstrate a different proposition: that Congress could not pass legislation codifying the rule and reached a short-term compromise instead. Reliance interests do not require us to reaffirm Dr. Miles. To be sure, reliance on a judicial opinion is a significant reason to adhere to it, Payne v. Tennessee, 501 U. S. 808, 828 (1991), especially “in cases involving property and contract rights,” Khan, 522 U. S., at 20. The reliance interests here, however, like the reliance interests in Khan, cannot justify an inefficient rule, especially because the narrowness of the rule has allowed manufacturers to set minimum resale prices in other ways. And while the Dr. Miles rule is longstanding, resale price maintenance was legal under fair trade laws in a majority of States for a large part of the past century up until 1975. It is also of note that during this time “when the legal environment in the [United States] was most favorable for [resale price maintenance], no more than a tiny fraction of manufacturers ever employed [resale price maintenance] contracts.” Overstreet 6; see also id., at 169 (noting that “no more than one percent of manufacturers, accounting for no more than ten percent of consumer goods purchases, ever employed [resale price maintenance] in any single year in the [United States]”); Scherer & Ross 549 (noting that “[t]he fraction of U.S. retail sales covered by [resale price maintenance] in its heyday has been variously estimated at from 4 to 10 percent”). To the extent consumers demand cheap goods, judging vertical price restraints under the rule of reason will not prevent the market from providing them. Cf. Easterbrook 152–153 (noting that “S.S. Kresge (the old K-Mart) flourished during the days of manufacturers’ greatest freedom” because “discount stores offer a combination of price and service that many customers value” and that “[n]othing in restricted dealing threatens the ability of consumers to find low prices”); Scherer & Ross 557 (noting that “for the most part, the effects of the [Consumer Goods Pricing Act] were imperceptible because the forces of competition had already repealed the [previous antitrust exemption] in their own quiet way”). For these reasons the Court’s decision in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911), is now overruled. Vertical price restraints are to be judged according to the rule of reason. V Noting that Leegin’s president has an ownership interest in retail stores that sell Brighton, respondent claims Leegin participated in an unlawful horizontal cartel with competing retailers. Respondent did not make this allegation in the lower courts, and we do not consider it here. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
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549.US.483
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The Guam Legislature authorized the Governor to issue bonds to fund the Territory’s continuing obligations, but Guam’s attorney general refused to sign the necessary contracts, concluding that issuance would violate the debt-limitation provision of Guam’s Organic Act, which limits the Territory’s public indebtedness to 10% of the “aggregate tax valuation of the property in Guam,” 48 U. S. C. §1423a. The Governor sought a declaration from the Guam Supreme Court that issuance would not violate the provision, calculating the debt limitation based on the appraised value of property in Guam. Agreeing, the Supreme Court rejected the attorney general’s argument to base the limitation on assessed value. The Ninth Circuit granted the attorney general’s certiorari petition, but while the appeal was pending, Congress removed the Circuit’s jurisdiction over appeals from Guam. Relying on its holding in Santos v. Guam, that Congress had stripped it of jurisdiction over pending appeals, the court dismissed the appeal. The attorney general then filed a petition for certiorari in this Court, even though it was more than 90 days after the Guam Supreme Court’s judgment. Held: 1. The Guam Supreme Court’s judgment did not become final, for purposes of this Court’s review, until the Ninth Circuit issued its order dismissing the appeal. Certiorari petitions must be filed “within 90 days after the entry of,” 28 U. S. C. §2101(c), a lower court’s “genuinely final judgment,” Hibbs v. Winn, 542 U. S. 88, 98. In some cases, the actions of a party or a lower court suspend the finality of a judgment by “rais[ing] the question whether the court will modify the judgment and alter the parties’ rights.” Ibid. By granting the petition for certiorari, the Ninth Circuit raised that possibility and thus suspended the finality of the Guam Supreme Court’s judgment. Until the Circuit issued its order dismissing the case, the appeal remained pending, and the finality of the judgment remained suspended. Contrary to the Governor’s arguments, the judgment was not made final either when Congress enacted the jurisdiction-depriving statute or when the Ninth Circuit decided Santos. This holding is limited to the unique procedural circumstances here. Pp. 3–5. 2. Guam’s debt limitation must be calculated according to the assessed valuation of property in the Territory. The term “tax valuation” most naturally means the value to which the tax rate is applied. It therefore means “assessed valuation”—a term consistently defined as a valuation of property for tax purposes. Appraised value is simply market value, which may or may not relate to taxation. The Guam Supreme Court’s contrary interpretation—that “tax” limits the kinds of property qualifying for inclusion in the debt-limitation calculation—impermissibly rearranges the statutory language. “Tax” modifies “valuation,” not “property.” Thus, “tax valuation” refers to the type of valuation to be conducted, not the object that is valued. The court also erred in reasoning that, because the Virgin Islands’ debt-limitation provision explicitly refers to “assessed value,” Congress must have intended to base Guam’s limitation on some other value. Congress’ rejection of “assessed” says no more than its rejection of “actual” or “appraised,” terms it could have used had it meant actual, market, or appraised value. This Court’s interpretation comports with most States’ practice of fixing the debt limitations of municipalities to assessed valuation. States use clear language when departing from this approach, but Congress has not done so here. The Governor’s additional arguments—that this interpretation would result in no debt limitation at all because Guam may arbitrarily set its assessment rate above 100 percent of market value, and that this Court owes deference to the Guam Supreme Court’s interpretation of the Organic Act—are not persuasive. Pp. 5–8. Reversed and remanded. Thomas, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I, III, and IV, in which Roberts, C. J., and Scalia, Kennedy, and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part and dissenting in part, in which Stevens, Ginsburg, and Alito, JJ., joined.
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The Legislature of Guam authorized Guam’s Governor to issue bonds to fund the Territory’s continuing obligations. Concluding that the bonds would violate the debt-limitation provision of the Organic Act of Guam, §11, 64 Stat. 387, as amended, 48 U. S. C. §1423a, the attorney general[Footnote 1] of Guam refused to sign contracts necessary to issue the bonds. In response, the Governor sought a declaration from the Guam Supreme Court that issuance of the bonds would not violate the Organic Act’s debt limitation. The Guam Supreme Court held that §1423a limits Guam’s allowed indebtedness to 10 percent of the appraised valuation, not the assessed valuation, of taxable property in Guam. We granted certiorari to decide whether Guam’s debt limitation must be calculated according to the assessed or the appraised valuation of property in Guam. We hold that it must be calculated based on the assessed valuation. I In 2003, Guam lacked sufficient revenues to pay its obligations. To supplement revenues, the Guam Legislature authorized the Governor to issue bonds worth approximately $400 million. See Guam Pub. L. 27–019. The Governor signed the new legislation and prepared to issue the bonds. However, under Guam law, Guam’s attorney general must review and approve all government contracts prior to their execution. Guam Code Ann., Tit. 5, §22601 (1996). The attorney general concluded that issuance of the bonds would raise the Territory’s debt above the level authorized by Guam’s Organic Act. See 48 U. S. C. §1423a (prohibiting debt “in excess of 10 per centum of the aggregate tax valuation of the property in Guam”). He therefore refused to approve the bond contracts. In response, the Governor sought a declaration from the Guam Supreme Court that issuance of the authorized bonds would not cause Guam’s debt to exceed the debt limitation. That determination turned, in part, on the meaning of the phrase “aggregate tax valuation” in Guam’s Organic Act. The attorney general calculated the debt limitation as 10 percent of the assessed valuation of property in Guam. But the Governor calculated the debt limitation as 10 percent of the appraised valuation. Because Guam assesses property at 35 percent of its appraised value, Guam Code Ann., Tit. 11, §24102(f), the attorney general’s interpretation resulted in a much lower debt limit. The Guam Supreme Court agreed with the Governor and held that 48 U. S. C. §1423a sets the debt limitation at 10 percent of the appraised valuation of property in Guam. The attorney general filed a petition for certiorari in the United States Court of Appeals for the Ninth Circuit. See §1424–2 (granting Ninth Circuit jurisdiction over appeals from Guam). The Court of Appeals granted the petition in October 2003. While the appeal was pending, Congress amended §1424–2 and removed the language that vested jurisdiction in the Ninth Circuit over appeals from Guam. See §2, 118 Stat. 2208, 48 U. S. C. A. §1424–2 (West Supp. 2006). In Santos v. Guam, 436 F. 3d 1051 (Jan. 3, 2006), the Court of Appeals addressed the effect of the amendment on its jurisdiction. The court held that Congress had stripped its jurisdiction not only prospectively, but also for pending appeals. Id., at 1054. Citing Santos, the Ninth Circuit dismissed the attorney general’s appeal in this case on March 6, 2006. See App. to Pet. for Cert. 39a. The attorney general then filed a petition for certiorari in this Court. By statute, certiorari petitions must be filed “within 90 days after the entry of … judgment” in a lower court. 28 U. S. C. §2101(c). The attorney general filed his petition more than 90 days after the judgment from which he appeals—that of the Guam Supreme Court—was entered. Accordingly, when we granted certiorari in this case, 548 U. S. ___ (2006), we directed the parties to address both the question presented by petitioner and whether the filing of a petition for certiorari or the pendency of a writ of certiorari before the Court of Appeals suspended the finality of the Guam Supreme Court’s judgment for purposes of the 90-day period set out in §2101(c). II Only “a genuinely final judgment” will trigger §2101(c)’s 90-day period for filing a petition for certiorari in this Court. Hibbs v. Winn, 542 U. S. 88, 98 (2004). In most cases, the 90-day period begins to run immediately upon entry of a lower court’s judgment. In some cases, though, the actions of a party or a lower court suspend the finality of a judgment and thereby reset the 90-day “clock.” Ibid. For instance, the timely filing of a petition for rehearing with the lower court or a lower court’s appropriate decision to rehear an appeal may suspend the finality of a judgment by “rais[ing] the question whether the court will modify the judgment and alter the parties’ rights.” Ibid. (citing Missouri v. Jenkins, 495 U. S. 33, 46 (1990)). So long as that question remains open, “ ‘there is no “judgment” to be reviewed,’ ” Hibbs, supra, at 98 (quoting Jenkins, supra, at 46), and §2101(c)’s 90-day period does not run. The same reasoning applies here. In 2003, the Court of Appeals appropriately exercised discretionary jurisdiction over the attorney general’s appeal. See 48 U. S. C. §1424–2. By granting the petition for certiorari, the Ninth Circuit raised the possibility that it might “modify the judgment” or “alter the parties’ rights.” Hibbs, supra, at 98. Thus, the Court of Appeals’ grant of certiorari suspended the finality of the Guam Supreme Court’s judgment and prevented the 90-day clock from running while the case was pending before the Court of Appeals. And until the Ninth Circuit issued its order dismissing the case, the appeal remained pending, and the finality of the judgment remained suspended. The Governor argues that the judgment was made final earlier—either when Congress enacted the statute depriving the Court of Appeals of jurisdiction or when the Court of Appeals decided in Santos that the statute applied to pending cases. But when Congress removed the Ninth Circuit’s jurisdiction over appeals from Guam, it did not dismiss this appeal. Likewise, when the Ninth Circuit determined in Santos, that Congress had stripped its jurisdiction over pending appeals, the court did not finally determine the rights of the parties in this case. The jurisdiction-stripping statute and Santos may have signaled the Court of Appeals’ ultimate dismissal of the appeal, but neither created a final judgment in the still-pending case. The attorney general’s appeal remained pending until the Ninth Circuit issued its dismissal order. And the pendency of the appeal continued to “raise the question whether” any further action by the court might affect the relationship of the parties. Hibbs, supra, at 98. Accordingly, we hold that the judgment of the Guam Supreme Court did not become final, for purposes of this Court’s review, until the Court of Appeals issued its order dismissing the appeal. We emphasize that our holding is limited to the unique procedural circumstances presented here. Specifically, our holding does not extend to improperly filed appeals or filings used as delaying tactics. See Morse v. United States, 270 U. S. 151 (1926) (holding that second application for leave to file motion for new trial did not suspend the finality of the lower court’s judgment). III Having determined that we have jurisdiction, we turn to the merits. As always, we begin with the text of the statute. See Nebraska Dept. of Revenue v. Loewenstein, 513 U. S. 123, 128 (1994). Guam’s Organic Act states that “no public indebtedness of Guam shall be authorized or allowed in excess of 10 per centum of the aggregate tax valuation of the property in Guam.” 48 U. S. C. §1423a. The present dispute centers on the meaning of the term “tax valuation.” In its unmodified form, the word “valuation” means “[t]he estimated worth of a thing.” Black’s Law Dictionary 1721 (4th ed. 1951) (hereinafter Black’s). But as the parties’ competing interpretations demonstrate, there are different sorts of valuations. An appraised valuation is the market value of property. See id., at 129 (defining “appraise” as “to fix and state the true value of a thing”). By contrast, an “assessed valuation” is the “[v]alue on each unit of which a prescribed amount must be paid as property taxes.” Id., at 149. These two kinds of valuation are related in practice because a property’s assessed valuation generally equals some percentage of its appraised valuation. See, e.g., Guam Code Ann., Tit. 11, §24102(f) (defining “value” as “thirty-five per cent (35%) of the appraised value”). The assessed valuation therefore could, but typically does not, equal the market value of the property. Though it has no established definition, the term “tax valuation” most naturally means the value to which the tax rate is applied.[Footnote 2] Were it otherwise, the modifier “tax” would have almost no meaning or a meaning inconsistent with ordinary usage. “Tax valuation” therefore means “assessed valuation”—a term consistently defined as a valuation of property for purposes of taxation. See Black’s 149; see also id., at 116 (6th ed. 1990) (defining “assessed valuation” as “[t]he worth or value of property established by taxing authorities on the basis of which the tax rate is applied”). One would not normally refer to a property’s appraised valuation as its “tax valuation.” Appraised valuation is simply market value. And market value may or may not relate to taxation. Usually market value becomes relevant to taxation only because a specified percentage of market value is the assessed value to which taxing authorities apply the tax rate. It would strain the text to conclude that “tax valuation” means a valuation a step removed from taxation. The Guam Supreme Court reached a contrary conclusion by interpreting the word “tax” to limit the kinds of property that qualify for inclusion in the debt-limitation calculation. But that interpretation impermissibly rearranges the statutory language. The word “tax” modifies “valuation,” not “property.” The phrase “tax valuation” therefore refers to the type of valuation to be conducted, not the object that is valued. The Guam Supreme Court also contrasted 48 U. S. C. §1423a’s language with explicit references to “assessed valuation” in the debt-limitation provision for the Virgin Islands. See §1403 (“aggregate assessed valuation”). The court reasoned that, by using language in §1423a that differed from that used in the Virgin Islands’ debt-limitation provision, Congress expressed its intent to base Guam’s debt limitation on something other than assessed value. We disagree. Certainly, Congress could have used the term “assessed valuation.” But if Congress had meant actual, market, or appraised value, it could have used any one of those terms as well. See N. W. Halsey & Co. v. Belle Plaine, 128 Iowa 467, 104 N. W. 494 (1905) (interpreting debt-limitation provision using phrase “actual value”). Or it could have left the word “valuation” unmodified: State courts interpreting other debt-limitation provisions have understood “valuation,” standing alone, to mean the market or cash value of property. See, e.g., Board of Education, Rich Cty. School Dist. v. Passey, 122 Utah 102, 104–106, 246 P. 2d 1078, 1079 (1952). At least in this context, Congress’ rejection of “assessed” tells us no more than does its rejection of “actual” or “appraised.” Our interpretation comports with most States’ practice of tying the debt limitations of municipalities to assessed valuation. See 15 E. McQuillin, Law of Municipal Corporations §41:7, p. 422 (3d ed. rev. 2005) (“Most of the constitutional and statutory provisions make the assessed value of the taxable property of the municipality the basis for ascertaining the amount of indebtedness which may be incurred …”). States that depart from the majority approach use clear language to do so. See id., at 424–425. (“The standard is generally the assessed value of the property for taxation, rather than the actual value, where the two are different; but where the constitution or statute uses the term ‘actual value,’ such value governs rather than the taxable value” (citing N. W. Halsey & Co., supra; footnote omitted)). Congress has not used such language here. Indeed, as discussed earlier, only a strained reading of “tax valuation” would suggest a departure from the majority approach. The Governor suggests that our interpretation would result in no debt limitation at all because Guam may arbitrarily set its assessment rate above 100 percent of market value. For two reasons, we think the Governor has overstated this concern. First, most States have long based their debt limitations on assessed value without incident. Second, a strong political check exists; property-owning voters will not fail to notice if the government sets the assessment rate above market value. Finally, the Governor mistakenly argues that we owe deference to the Guam Supreme Court’s interpretation of its Organic Act. It may be true that we accord deference to territorial courts over matters of purely local concern. See Pernell v. Southall Realty, 416 U. S. 363, 366 (1974) (reviewing District of Columbia Court of Appeals’ interpretation of D. C. Code provision). This case does not fit that mold, however. The debt-limitation provision protects both Guamanians and the United States from the potential consequences of territorial insolvency. Thus, this case is not a matter of purely local concern. Of course, decisions of the Supreme Court of Guam, as with other territorial courts, are instructive and are entitled to respect when they indicate how statutory issues, including the Organic Act, apply to matters of local concern. On the other hand, the Organic Act is a federal statute, which we are bound to construe according to its terms. IV For the foregoing reasons, we reverse the judgment of the Guam Supreme Court and remand the case for proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 At the time suit was filed, Douglas Moylan served as Guam’s attorney general. Alicia Limtiaco has since been elected to the position, and she continues the case in Moylan’s place. Footnote 2 The Guam Legislature passed a law attempting to define the term “tax valuation.” See Guam Code Ann., Tit. 11, §24102(l), available at http://www.guamcourts.org/justicedocs/ (as visited Mar. 16, 2007). But that term appears in Guam’s Organic Act, which is a federal statute. As the Guam Supreme Court correctly determined, Guam’s territorial legislature cannot redefine terms used in a federal statute.
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551.US.158
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The Fair Labor Standards Amendments of 1974 exempted from the minimum wage and maximum hours rules of the Fair Labor Standards Act of 1938 (FLSA) persons “employed in domestic service employment to provide companionship services for individuals … unable to care for themselves.” 29 U. S. C. §213(a)(15). Under a Labor Department (DOL) regulation labeled an “Interpretatio[n]” (hereinafter third-party regulation), the exemption includes those “companionship” workers “employed by an … agency other than the family or household using their services.” 29 CFR §552.109(a). However, DOL’s “General Regulations” also define the statutory term “domestic service employment” as “services of a household nature performed by an employee in or about a private home … of the person by whom he or she is employed.” §552.3 (emphasis added). Respondent, a “companionship services” provider to the elderly and infirm, sued petitioners, her former employer Long Island Care and its owner, seeking minimum and overtime wages they allegedly owed her. The parties assume the FLSA requires the payments only if its “companionship services” exemption does not apply to workers paid by third-party agencies such as Long Island Care. The District Court dismissed the suit, finding the third-party regulation valid and controlling. The Second Circuit found the regulation unenforceable and set the judgment aside. Held: The third-party regulation is valid and binding. Pp. 4–16. (a) An agency’s power to administer a congressionally created program necessarily requires the making of rules to fill any “ ‘gap’ ” left, implicitly or explicitly, by Congress. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843. When an agency fills such a gap reasonably, and in accordance with other applicable (e.g., procedural) requirements, that result is legally binding. Id., at 843–844. On its face, the third-party regulation seems to fill a statutory gap. Pp. 4–5. (b) The regulation does not exceed DOL’s delegated rulemaking authority. The FLSA explicitly leaves gaps as to the scope and definition of its “domestic service employment” and “companionship services” terms, 29 U. S. C. §213(a)(15), and empowers the DOL to fill these gaps through regulations, 1974 Amendments, §29(b). Whether to include workers paid by third parties is one of the details left to the DOL to work out. Although the pre-1974 FLSA already covered some third-party-paid companionship workers, e.g., those employed by large private enterprises, it did not then cover others, e.g., those employed directly by the aged person’s family or by many smaller private agencies. Thus, whether, or how, the statutory definition should apply to such workers raises a set of complex questions, e.g., should the FLSA cover all of them, some of them, or none of them? How should the need for a simple, uniform application of the exemption be weighed against the fact that some (but not all) of the workers were previously covered? Given the DOL’s expertise, satisfactory answers to the foregoing questions may well turn upon its thorough knowledge of the area and ability to consult at length with affected parties. It is therefore reasonable to infer that Congress intended its broad grant of definitional authority to the DOL to include the authority to answer such questions. Respondent’s reliance on the Social Security statute, whose text expressly answers a “third party” coverage question, and on conflicting statements in the 1974 Amendments’ legislative history, is unavailing. Pp. 5–8. (c) Although the literal language of the third-party regulation and the “General Regulation,” §552.3, conflicts as to whether third-party-paid workers are included within the statutory exemption, several reasons compel the Court to agree with the DOL’s position, set forth in an “Advisory Memorandum” explaining (and defending) the third-party regulation, that that regulation governs here. First, a decision that §552.3 controls would create serious problems as to the coverage of particular domestic service employees by the statutory exemption or by the FLSA as a whole. Second, given that the third-party regulation’s sole purpose is to explain how the companionship services exemption applies to persons employed by third-party entities, whereas §552.3’s primary purpose is to describe the kind of work that must be performed to qualify someone as a “domestic service” employee, the third-party regulation is the more specific with respect to the question at issue and therefore governs, see, e.g., Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384–385. Third, that the DOL may have interpreted the two regulations differently at different times in their history is not a ground for disregarding the present interpretation, which the DOL reached after proposing a different interpretation through notice-and-comment rulemaking, making any unfair surprise unlikely, cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212. Fourth, while the Advisory Memorandum was issued only to DOL personnel and written in response to this litigation, this Court has accepted such an interpretation where, as here, an agency’s course of action indicates that its interpretation of its own regulation reflects its considered views on the matter in question and there is no reason to suspect that its interpretation is merely a post hoc rationalization. Pp. 8–11. (d) Several factors compel the Court to reject respondent’s argument that the third-party regulation is an “interpretation” not meant to fill a statutory “gap,” but simply to describe the DOL’s view of what the FLSA means, and thus is not entitled to Chevron deference, cf. United States v. Mead Corp., 533 U. S. 218, 232. For one thing, the regulation directly governs the conduct of members of the public, “ ‘affecting individual rights and obligations.’ ” Chrysler Corp. v. Brown, 441 U. S. 281, 302. When promulgating the regulation and when considering amending it, the DOL has always employed full public notice-and-comment procedures, which under the Administrative Procedure Act (APA) need not be used when producing an “interpretive” rule, 5 U. S. C. §553(b)(A). And for the past 30 years, according to the Advisory Memorandum (and not disputed by respondent), the DOL has treated the regulation as a legally binding exercise of its rulemaking authority. For another thing, the DOL may have placed the third-party regulation in Subpart B of Part 552, entitled “Interpretations,” rather than in Subpart A, “General Regulations,” because Subpart B contains matters of detail, interpreting and applying Subpart A’s more general definitions. Indeed, Subpart B’s other regulations—involving, e.g., employer “credit[s]” against minimum wages for provision of “food,” “lodging,” and “drycleaning”—strongly indicate that such details, not a direct interpretation of the statute’s language, are at issue. Finally, the Court assumes Congress meant and expected courts to treat a regulation as within a delegation of “gap-filling” authority where, as here, the rule sets forth important individual rights and duties, the agency focuses fully and directly upon the issue and uses full notice-and-comment procedures, and the resulting rule falls within the statutory grant of authority and is reasonable. Mead, supra, at 229–233. Pp. 11–14. (e) The Court disagrees with respondent’s claim that the DOL’s 1974 notice-and-comment proceedings were legally “defective” because the DOL’s notice and explanation were inadequate. Fair notice is the object of the APA requirement that a notice of proposed rulemaking contain “either the terms or substance of the proposed rule or a description of the subjects and issues involved,” 5 U. S. C. §553(b)(3). The Circuits have generally interpreted this to mean that the final rule must be a logical outgrowth of the rule proposed. Initially, the DOL’s proposed regulation would have placed outside the §213(a)(15) exemption (and hence left subject to FLSA wage and hour rules) individuals employed by the large enterprise third-party employers covered before 1974. Since that was simply a proposal, however, its presence meant that the DOL was considering the matter and might later choose to keep the proposal or to withdraw it. The DOL finally withdrew it, resulting in a determination exempting all third-party-employed companionship workers from the FLSA, and that possibility was reasonably foreseeable. There is also no significant legal problem with the DOL’s explanation that its final interpretation is more consistent with FLSA language. No one seems to have objected to this explanation at the time, and it still remains a reasonable, albeit brief, explanation. Pp. 14–16. 462 F. 3d 48, reversed and remanded. Breyer, J., delivered the opinion for a unanimous Court.
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A provision of the Fair Labor Standards Act exempts from the statute’s minimum wage and maximum hours rules “any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor]).” 29 U. S. C. §213(a)(15). A Department of Labor regulation (labeled an “interpretation”) says that this statutory exemption includes those “companionship” workers who “are employed by an employer or agency other than the family or household using their services.” 29 CFR §552.109(a) (2006). The question before us is whether, in light of the statute’s text and history, and a different (apparently conflicting) regulation, the Department’s regulation is valid and binding. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844 (1984). We conclude that it is. I A In 1974, Congress amended the Fair Labor Standards Act of 1938 (FLSA or Act), 52 Stat. 1060, to include many “domestic service” employees not previously subject to its minimum wage and maximum hour requirements. See Fair Labor Standards Amendments of 1974 (1974 Amendments), §§7(b)(1), (2), 88 Stat. 62 (adding 29 U. S. C. §206(f), which provides for a minimum wage for domestic service employees, and §207(l), which extends overtime restrictions to domestic service employees). When doing so, Congress simultaneously created an exemption that excluded from FLSA coverage certain subsets of employees “employed in domestic service employment,” including babysitters “employed on a casual basis” and the companionship workers described above. §7(b)(3), 88 Stat. 62, (codified at 29 U. S. C. §213(a)(15)). The Department of Labor (Department or DOL) then promulgated a set of regulations that included two regulations at issue here. The first, set forth in a subpart of the proposed regulations entitled “General Regulations,” defines the statutory term “domestic service employment” as “services of a household nature performed by an employee in or about a private home … of the person by whom he or she is employed … such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use [as well as] babysitters employed on other than a casual basis.” 40 Fed. Reg. 7405 (1975) (emphasis added) (codified at 29 CFR §552.3). The second, set forth in a later subsection entitled “Interpretations,” says that exempt companionship workers include those “who are employed by an employer or agency other than the family or household using their services … [whether or not] such an employee [is assigned] to more than one household or family in the same workweek … .” 40 Fed. Reg. 7407 (codified at 29 CFR §552.109(a)). This latter regulation (which we shall call the “third-party regulation”) has proved controversial in recent years. On at least three separate occasions during the past 15 years, the Department considered changing the regulation and narrowing the exemption in order to bring within the scope of the FLSA’s wage and hour coverage companionship workers paid by third parties (other than family members of persons receiving the services, who under the proposals were to remain exempt). 58 Fed. Reg. 69310–69312 (1993); 60 Fed. Reg. 46798 (1995); 66 Fed. Reg. 5481, 5485 (2001). But the Department ultimately decided not to make any change. 67 Fed. Reg. 16668 (2002). B In April 2002, Evelyn Coke (respondent), a domestic worker who provides “companionship services” to elderly and infirm men and women, brought this lawsuit against her former employer, Long Island Care at Home, Ltd., and its owner, Maryann Osborne (petitioners). App. 1, 19; 267 F. Supp. 2d 332, 333–334 (EDNY 2003). She alleged that the petitioners failed to pay her the minimum wages and overtime wages to which she was entitled under the FLSA and a New York statute, and she sought a judgment for those unpaid wages. App. 21–22. All parties assume for present purposes that the FLSA entitles Coke to the payments if, but only if, the statutory exemption for “companionship services” does not apply to companionship workers paid by third-party agencies such as Long Island Care. The District Court found the Department’s third-party regulation valid and controlling, and it consequently dismissed Coke’s lawsuit. 267 F. Supp. 2d, at 341. On appeal, the Second Circuit found the Department’s third-party regulation “unenforceable” and set aside the District Court’s judgment. 376 F. 3d 118, 133, 135 (2004). Long Island Care and Osborne sought certiorari. At the Solicitor General’s suggestion, we vacated the Second Circuit’s decision and remanded the case so that the Circuit could consider a recent DOL “Advisory Memorandum” explaining (and defending) the regulation. 546 U. S. 1147 (2006); App. E to Pet. for Cert. 50a (Wage and Hour Advisory Memorandum No. 2005–1 (Dec. 1, 2005) (hereinafter Advisory Memorandum)). The memorandum failed to convince the Second Circuit, which again held the regulation unenforceable. 462 F. 3d 48, 50–52 (2006) (per curiam). Long Island Care and Osborne again sought certiorari. And this time, we granted their petition and set the case for argument. II We have previously pointed out that the “ ‘power of an administrative agency to administer a congressionally created … program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.’ ” Chevron, 467 U. S., at 843 (quoting Morton v. Ruiz, 415 U. S. 199, 231 (1974); omission in original). When an agency fills such a “gap” reasonably, and in accordance with other applicable (e.g., procedural) requirements, the courts accept the result as legally binding. 467 U. S., at 843–844; United States v. Mead Corp., 533 U. S. 218, 227 (2001). In this case, the FLSA explicitly leaves gaps, for example as to the scope and definition of statutory terms such as “domestic service employment” and “companionship services.” 29 U. S. C. §213(a)(15). It provides the Department of Labor with the power to fill these gaps through rules and regulations. Ibid.; 1974 Amendments, §29(b), 88 Stat. 76 (authorizing the Secretary of Labor “to prescribe necessary rules, regulations, and orders with regard to the amendments made by this Act”). The subject matter of the regulation in question concerns a matter in respect to which the agency is expert, and it concerns an interstitial matter, i.e., a portion of a broader definition, the details of which, as we said, Congress entrusted the agency to work out. The Department focused fully upon the matter in question. It gave notice, it proposed regulations, it received public comment, and it issued final regulations in light of that comment. 39 Fed. Reg. 35383 (1974); 40 Fed. Reg. 7404. See Mead, supra, at 230. The resulting regulation says that employees who provide “companionship services” fall within the terms of the statutory exemption irrespective of who pays them. Since on its face the regulation seems to fill a statutory gap, one might ask what precisely is it about the regulation that might make it unreasonable or otherwise unlawful? Respondent argues, and the Second Circuit concluded, that a thorough examination of the regulation’s content, its method of promulgation, and its context reveals serious legal problems—problems that led the Second Circuit to conclude that the regulation was unenforceable. In particular, respondent claims that the regulation falls outside the scope of Congress’ delegation; that it is inconsistent with another, legally governing regulation; that it is an “interpretive” regulation not warranting judicial deference; and that it was improperly promulgated. We shall examine each of these claims in turn. A Respondent refers to the statute’s language exempting from FLSA coverage those “employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” 29 U. S. C. §213(a)(15). She claims that the words “domestic service employment” limit the provision’s scope to those workers employed by persons who themselves receive the services (or are part of that person’s household) and exclude those who are employed by “third parties.” And she advances several arguments in favor of this position. Respondent points to the overall purpose of the 1974 Amendments, namely to extend FLSA coverage, see, e.g., H. R. Rep. No. 93–232, pp. 2, 8 (1973); she notes that prior to the amendments the FLSA already covered companionship workers employed by certain third parties (e.g., private agencies that were large enough, in terms of annual sales, to qualify for the FLSA’s “enterprise coverage” provisions, 29 U. S. C. §§206(a), 207(a)(1) (1970 ed.), see §§203(r), (s)(1) (defining “enterprise” and “enterprise engaged in commerce or the production of goods for commerce”)); and she concludes that Congress must therefore have meant its “domestic service employment” language in the exemption to apply only to persons not employed by third parties such as Long Island Care. Respondent tries to bolster this argument by pointing to statements made by some Members of Congress during floor debates over the 1974 Amendments. See, e.g., 119 Cong. Rec. 24801 (1973) (statement of Sen. Burdick) (“I am not concerned about the professional domestic who does this as a daily living,” but rather about “people who might have an aged father, an aged mother, an infirm father, an infirm mother, and a neighbor comes in and sits with them”). And she also points to a different statute, the Social Security statute, which defines “domestic service employment” as domestic work performed in “a private home of the employer.” 26 U. S. C. §3510(c)(1) (2000 ed.) (emphasis added; internal quotation marks omitted). We do not find these arguments convincing. The statutory language refers broadly to “domestic service employment” and to “companionship services.” It expressly instructs the agency to work out the details of those broad definitions. And whether to include workers paid by third parties within the scope of the definitions is one of those details. Although the FLSA in 1974 already covered some of the third-party-paid workers, it did not at that point cover others. It did not cover, for example, companionship workers employed directly by the aged person’s family; nor did it cover workers employed by many smaller private agencies. The result is that whether, or how, the definition should apply to workers paid by third parties raises a set of complex questions. Should the FLSA cover all companionship workers paid by third parties? Or should the FLSA cover some such companionship workers, perhaps those working for some (say, large but not small) private agencies, or those hired by a son or daughter to help an aged or infirm mother living in a distant city? Should it cover none? How should one weigh the need for a simple, uniform application of the exemption against the fact that some (but not all) third-party employees were previously covered? Satisfactory answers to such questions may well turn upon the kind of thorough knowledge of the subject matter and ability to consult at length with affected parties that an agency, such as the Department of Labor, possesses. And it is consequently reasonable to infer (and we do infer) that Congress intended its broad grant of definitional authority to the Department to include the authority to answer these kinds of questions. Because respondent refers to the Social Security statute and the legislative history, we add that unlike the text of the Social Security statute, the text of the FLSA does not expressly answer the third-party-employment question. Compare 26 U. S. C. §3510(c)(1) with 29 U. S. C. §213(a)(15). Nor can one find any clear answer in the statute’s legislative history. Compare 119 Cong. Rec. 24801 (statement of Sen. Burdick, quoted above), with, e.g., id., at 24798 (statement of Sen. Johnston) (expressing concern that requiring payment of minimum wage to companionship workers might make such services so expensive that some people would be forced to leave the work force in order to take care of aged or infirm parents). B Respondent says that the third-party regulation conflicts with the Department’s “General Regulation” that defines the statutory term “domestic service employment.” Title 29 CFR §552.3 says that the term covers services “of a household nature performed by … employee[s]” ranging from “maids” to “cooks” to “housekeepers” to “caretakers” and others, “in or about a private home … of the person by whom he or she is employed” (emphasis added). See also §552.101(a). A companionship worker employed by a third party to work at the home of an aged or infirm man or woman is not working at the “home … of the person by whom he or she is employed” (i.e., she is not working at the home of the third-party employer). Hence, the two regulations are inconsistent, for the one limits the definition of “domestic service employee” for purposes of the 29 U. S. C. §213(a)(15) exemption to workers employed by the household, but the other includes in the subclass of exempt companionship workers persons who are not employed by the household. Respondent adds that, given the conflict, the former “General Regulation” must govern (primarily because, in her view, only the former regulation is entitled to Chevron deference, an issue we address in Part II–C, infra). Respondent is correct when she says that the literal language of the two regulations conflicts as to whether workers paid by third parties are included within the statutory exemption. The question remains, however, which regulation governs in light of this conflict. The Department, in its Advisory Memorandum, suggests that the third-party regulation governs, and we agree, for several reasons. First, if we were to decide the contrary, i.e., that the text of the General Regulation, 29 CFR §552.3, controls on the issue of third-party employment, our interpretation would create serious problems. Although §552.3 states that it is supplying a definition of “domestic service employment” only “[a]s [that term is] used” in the statutory exemption, 29 U. S. C. §213(a)(15), the rule appears in other ways to have been meant to supply a definition of “domestic service employment” for the FLSA as a whole (a prospect the Department endorses in its Advisory Memorandum). Why else would the Department have included the extensive list of qualifying professions, virtually none of which have anything to do with the subjects of §213(a)(15), babysitting and companionship services? But if we were to apply §552.3’s literal definition of “domestic service employment” (including the “home … of the [employer]” language) across the FLSA, that would place outside the scope of FLSA’s wage and hour rules any butlers, chauffeurs, and so forth who are employed by any third party. That result seems clearly contrary to Congress’ intent in enacting the 1974 Amendments, particularly if it would withdraw from FLSA coverage all domestic service employees previously covered by the “enterprise coverage” provisions of the Act. If, on the other hand, §552.3’s definition of “domestic service employment” were limited to the statute’s exemption provision, applying this definition literally (by removing all third-party employees from the exemption) would extend the Act’s coverage not simply to third-party-employed companionship workers paid by large institutions, but also to those paid directly by a family member of an elderly or infirm person receiving such services whenever the family member lived in a different household than the invalid. Nothing in the statute suggests that Congress intended to make the exemption contingent on whether a family member chose to reside in the same household as the invalid, and it is a result that respondent herself seems to wish to avoid. See Brief for Respondent 34, n. 31. Second, normally the specific governs the general. E.g., Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384–385 (1992); Simpson v. United States, 435 U. S. 6, 15 (1978). The sole purpose of the third-party regulation, §552.109(a), is to explain how the companionship services exemption applies to persons employed by third-party entities, whereas the primary (if not sole) purpose of the conflicting general definitional regulation, §552.3, is to describe the kind of work that must be performed by someone to qualify as a “domestic service” employee. Given that context, §552.109(a) is the more specific regulation with respect to the third-party-employment question. Third, we concede that the Department may have interpreted these regulations differently at different times in their history. See, e.g., 58 Fed. Reg. 69311 (employees of a third-party employer qualify for the exemption only if they are also jointly employed “by the family or household using their services”); D. Sweeney, DOL Opinion Letter, Home Health Aides/Companionship Exemption, 6A LRR, Wages and Hours Manual 99:8205 (Jan. 6, 1999) (similar). But as long as interpretive changes create no unfair surprise—and the Department’s recourse to notice-and-comment rulemaking in an attempt to codify its new interpretation, see 58 Fed. Reg. 69311, makes any such surprise unlikely here—the change in interpretation alone presents no separate ground for disregarding the Department’s present interpretation. Cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212 (1988). Fourth, we must also concede, as respondent points out, that the Department set forth its most recent interpretation of these regulations in an “Advisory Memorandum” issued only to internal Department personnel and which the Department appears to have written in response to this litigation. We have “no reason,” however, “to suspect that [this] interpretation” is merely a “ ‘post hoc rationalizatio[n]’ ” of past agency action, or that it “does not reflect the agency’s fair and considered judgment on the matter in question.” Auer v. Robbins, 519 U. S. 452, 462 (1997) (quoting Bowen, supra). Where, as here, an agency’s course of action indicates that the interpretation of its own regulation reflects its considered views—the Department has clearly struggled with the third-party-employment question since at least 1993—we have accepted that interpretation as the agency’s own, even if the agency set those views forth in a legal brief. See 519 U. S., at 462. For all these reasons, we conclude that the Department’s interpretation of the two regulations falls well within the principle that an agency’s interpretation of its own regulations is “controlling” unless “ ‘ “plainly erroneous or inconsistent with” ’ ” the regulations being interpreted. Id., at 461 (quoting Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 359 (1989), in turn quoting Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945)). See also Udall v. Tallman, 380 U. S. 1, 16–17 (1965). C Respondent also argues that, even if the third-party regulation is within the scope of the statute’s delegation, is perfectly reasonable, and otherwise complies with the law, courts still should not treat the regulation as legally binding. Her reason is a special one. She says that the regulation is an “interpretive” regulation, a kind of regulation that may be used, not to fill a statutory “gap,” but simply to describe an agency’s view of what a statute means. That kind of regulation may “persuade” a reviewing court, Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but will not necessarily “bind” a reviewing court. Cf. Mead, 533 U. S., at 232 (“interpretive rules … enjoy no Chevron status as a class” (emphasis added)). Like respondent, the Court of Appeals concluded that the third-party regulation did not fill a statutory gap and hence was not legally binding. 376 F. 3d, at 131–133; 462 F. 3d, at 50–51. It based its conclusion upon three considerations: First, when the Department promulgated a series of regulations to implement the §213(a)(15) exemptions, 29 CFR pt. 552, it placed the third-party regulation in Subpart B, entitled “Interpretations,” not in Subpart A, entitled “General Regulations.” Second, the Department said that regulations 552.3, .4, .5, and .6, all in Subpart A, contained the “definitions” that the statute “require[s].” Third, the Department initially said in 1974 that Subpart A would “defin[e] and delimi[t] …the ter[m] ‘domestic service employee,’ ” while Subpart B would “se[t] forth … a statement of general policy and interpretation concerning the application of the [FLSA] to domestic service employees.” 376 F. 3d, at 131–132; 462 F. 3d, at 50–51 (quoting 39 Fed. Reg. 35382). These reasons do not convince us that the Department intended its third-party regulation to carry no special legal weight. For one thing, other considerations strongly suggest the contrary, namely that the Department intended the third-party regulation as a binding application of its rulemaking authority. The regulation directly governs the conduct of members of the public, “ ‘affecting individual rights and obligations.’ ” Chrysler Corp. v. Brown, 441 U. S. 281, 302 (1979) (quoting Morton, 415 U. S., at 232). When promulgating the rule, the agency used full public notice-and-comment procedures, which under the Administrative Procedure Act an agency need not use when producing an “interpretive” rule. 5 U. S. C. §553(b)(A) (exempting “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” from notice-and-comment procedures). Each time the Department has considered amending the rule, it has similarly used full notice-and-comment rulemaking procedures. 58 Fed. Reg. 69310 (1993); 60 Fed. Reg. 46797 (1995); 66 Fed. Reg. 5485 (2001). And for the past 30 years, according to the Department’s Advisory Memorandum (and not disputed by respondent), the Department has treated the third-party regulation like the others, i.e., as a legally binding exercise of its rulemaking authority. App. E to Pet. for Cert. 63a–64a. For another thing, the Subpart B heading “Interpretations” (and the other indicia upon which the Court of Appeals relied) could well refer to the fact that Subpart B contains matters of detail, interpreting and applying the more general definitions of Subpart A. Indeed, Subpart B’s other regulations—involving such matters as employer “credit[s]” against minimum wage payments for provision of “food,” “lodging,” and “drycleaning,” 29 CFR §552.100(b), and so forth—strongly indicate that such details, not a direct interpretation of the statute’s language, are at issue. Finally, the ultimate question is whether Congress would have intended, and expected, courts to treat an agency’s rule, regulation, application of a statute, or other agency action as within, or outside, its delegation to the agency of “gap-filling” authority. Where an agency rule sets forth important individual rights and duties, where the agency focuses fully and directly upon the issue, where the agency uses full notice-and-comment procedures to promulgate a rule, where the resulting rule falls within the statutory grant of authority, and where the rule itself is reasonable, then a court ordinarily assumes that Congress intended it to defer to the agency’s determination. See Mead, supra, at 229–233. The three contrary considerations to which the Court of Appeals points are insufficient, in our view, to overcome the other factors we have mentioned, all of which suggest that courts should defer to the Department’s rule. And that, in our view, is what the law requires. D Respondent’s final claim is that the 1974 agency notice-and-comment procedure, leading to the promulgation of the third-party regulation, was legally “defective” because notice was inadequate and the Department’s explanation also inadequate. We do not agree. The Administrative Procedure Act requires an agency conducting notice-and-comment rulemaking to publish in its notice of proposed rulemaking “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U. S. C. §553(b)(3). The Courts of Appeals have generally interpreted this to mean that the final rule the agency adopts must be “a ‘logical outgrowth’ of the rule proposed.” National Black Media Coalition v. FCC, 791 F. 2d 1016, 1022 (CA2 1986). See also, e.g., United Steelworkers of America, AFL–CIO–CLC v. Marshall, 647 F. 2d 1189, 1221 (CADC 1980), cert. denied sub nom. Lead Industries Assn., Inc. v. Donovan, 453 U. S. 913 (1981); South Terminal Corp. v. EPA, 504 F. 2d 646, 659 (CA1 1974). The object, in short, is one of fair notice. Initially the Department proposed a rule of the kind that respondent seeks, namely a rule that would have placed outside the exemption (and hence left subject to FLSA wage and hour rules) individuals employed by third-party employers whom the Act had covered prior to 1974. 39 Fed. Reg. 35385 (companionship workers “not exempt” if employed by a third party that already was a “covered enterprise” under the FLSA). The clear implication of the proposed rule was that companionship workers employed by third-party enterprises that were not covered by the FLSA prior to the 1974 Amendments (e.g., most smaller private agencies) would be included within the §213(a)(15) exemption. Since the proposed rule was simply a proposal, its presence meant that the Department was considering the matter; after that consideration the Department might choose to adopt the proposal or to withdraw it. As it turned out, the Department did withdraw the proposal for special treatment of employees of “covered enterprises.” The result was a determination that exempted all third-party-employed companionship workers from the Act. We do not understand why such a possibility was not reasonably foreseeable. See, e.g., Arizona Public Serv. Co. v. EPA, 211 F. 3d 1280, 1299–1300 (CADC 2000) (notice sufficient where agency first proposed that Indian tribes be required to meet the “same requirements” as States with respect to judicial review of Clean Air Act permitting actions, but then adopted a final rule that exempted tribes from certain, though not all, requirements), cert. denied sub nom. Michigan v. EPA, 532 U. S. 970 (2001). Neither can we find any significant legal problem with the Department’s explanation for the change. The agency said that it had “concluded that these exemptions can be available to such third party employers” because that interpretation is “more consistent” with statutory language that refers to “ ‘any employee’ engaged ‘in’ the enumerated services” and with “prior practices concerning other similarly worded exemptions.” 40 Fed. Reg. 7405. There is no indication that anyone objected to this explanation at the time. And more than 30 years later it remains a reasonable, albeit brief, explanation. See Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc., 550 U. S. ___, ___ (2007) (slip op., at 18). Respondent’s only contrary argument apparently consists of her claim that the explanation does not take proper account of the statute’s reference to “domestic service employees,” which term (given the Social Security statute and legislative history) must refer only to those who are paid by the household for whom they provide services. If so, she simply repeats in different form arguments that we have already considered and rejected. See Part II–A, supra. III For these reasons the Court of Appeals’ judgment is reversed, and we remand the case for further proceedings consistent with this opinion. It is so ordered.
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549.US.47
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The Immigration and Nationality Act (INA) lists as an “aggravated felony” “illicit trafficking in a controlled substance … including a drug trafficking crime (as defined in section 924(c) of title 18),” 8 U. S. C. §1101(a)(43)(B), but does not define “illicit trafficking.” Title 18 U. S. C. §924(c)(2) defines “drug trafficking crime” to include “any felony punishable under the Controlled Substances Act” (CSA). Petitioner Lopez, a legal permanent resident alien, pleaded guilty to South Dakota charges of aiding and abetting another person’s possession of cocaine, which state law treated as the equivalent of possessing the drug, a state felony. The Immigration and Naturalization Service (INS) began removal proceedings on the ground, inter alia, that Lopez’s state conviction was for an aggravated felony. The Immigration Judge ultimately ruled that despite the CSA’s treatment of Lopez’s crime as a misdemeanor, see 21 U. S. C. §844(a), it was an aggravated felony under the INA owing to its being a felony under state law. The judge ordered Lopez removed in light of 8 U. S. C. §1229b(a)(3), which provides that the Attorney General’s discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. The Board of Immigration Appeals (BIA) affirmed, and the Eighth Circuit affirmed the BIA. Held: Conduct made a felony under state law but a misdemeanor under the CSA is not a “felony punishable under the Controlled Substances Act” for INA purposes. A state offense comes within the quoted phrase only if it proscribes conduct punishable as a felony under the CSA. The Government argues that possession’s felonious character as a state crime is enough to turn it into an aggravated felony under the INA because the CSA punishes possession, albeit as a misdemeanor, while §924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony, so that a prior conviction in state court will satisfy the felony element because the State treats possession that way. This argument is incoherent with any commonsense conception of “illicit trafficking,” the term ultimately being defined. Because the statutes in play do not define “trafficking,” the Court looks to the term’s everyday meaning, FDIC v. Meyer, 510 U. S. 471, 476, which ordinarily connotes some sort of commercial dealing. Commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government’s reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern. Reading §924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language counsels not to expect, and that result makes the Court very wary of the Government’s position. Although the Government might still be right, there would have to be some indication that Congress meant to define an aggravated felony of illicit trafficking in an unorthodox and unexpected way. There are good reasons to think it was doing no such thing here. First, an offense that necessarily counts as “illicit trafficking” under the INA is a “drug trafficking crime” under §924(c), i.e., a “felony punishable under the Controlled Substances Act,” §924(c)(2). To determine what felonies might qualify, the Court naturally looks to the definitions of crimes punishable as felonies under the CSA. If Congress had meant the Court to look to state law, it would have found a much less misleading way to make its point. The Government’s argument to the contrary contravenes normal ways of speaking and writing, which demonstrate that “felony punishable under the … Act” means “felony punishable as such under the Act” or “felony as defined by the Act,” and does not refer to state felonies, so long as they would be punishable at all under the CSA. The Government’s argument is not supported by the INA’s statement that the term “aggravated felony” “applies to an offense described in this paragraph whether in violation of Federal or State law.” 8 U. S. C. §1101(a)(43). Rather than wrenching the expectations raised by normal English usage, this provision has two perfectly straightforward jobs to do. First, it provides that a generic description of “an offense … in this paragraph,” one not specifically couched as a state offense or a federal one, covers either one, and, second, it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez’s state crime actually fell within the general term “illicit trafficking,” the state felony conviction would count as an “aggravated felony,” regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U. S. C. §844(a). Nothing in the provision in question suggests that Congress changed the meaning of “felony punishable under the [CSA]” when it took that phrase from Title 18 of the U. S. Code and incorporated it into Title 8’s definition of “aggravated felony.” Yet the Government admits that it has never begun a prosecution under 18 U. S. C. §924(c)(1)(A) where the underlying “drug trafficking crime” was a state felony but a federal misdemeanor. This telling failure in the very context in which the phrase “felony punishable under the [CSA]” appears in the Code belies the Government’s claim that its interpretation is the more natural one. Finally, the Government’s reading would render the law of alien removal, see 8 U. S. C. §1229b(a)(3), and the law of sentencing for illegal entry into the country, see United States Sentencing Commission, Guidelines Manual §2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. Congress would not have incorporated its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Pp. 4–12. 417 F. 3d 934, reversed and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.
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The question raised is whether conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is a “felony punishable under the Controlled Substances Act.” 18 U. S. C. §924(c)(2). We hold it is not. I A The Immigration and Nationality Act (INA) defines the term “aggravated felony” by a list that mentions “illicit trafficking in a controlled substance … including a drug trafficking crime (as defined in section 924(c) of title 18).” §101(a)(43)(B), as added by §7342, 102 Stat. 4469, and as amended by §222(a), 108 Stat. 4320, 8 U. S. C. §1101(a)(43)(B). The general phrase “illicit trafficking” is left undefined, but §924(c)(2) of Title 18 identifies the subcategory by defining “drug trafficking crime” as “any felony punishable under the Controlled Substances Act” or under either of two other federal statutes having no bearing on this case. Following the listing, §101(a)43 of the INA provides in its penultimate sentence that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law” or, in certain circumstances, “the law of a foreign country.” 8 U. S. C. §1101(a)(43). An aggravated felony on a criminal record has worse collateral effects than a felony conviction simple. Under the immigration statutes, for example, the Attorney General’s discretion to cancel the removal of a person otherwise deportable does not reach a convict of an aggravated felony. §1229b(a)(3). Nor is an aggravated felon eligible for asylum. §§1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). And under the sentencing law, the Federal Guidelines attach special significance to the “aggravated felony” designation: a conviction of unlawfully entering or remaining in the United States receives an eight-level increase for a prior aggravated felony conviction, but only four levels for “any other felony.” United States Sentencing Commission, Guidelines Manual §2L1.2 (Nov. 2005) (hereinafter USSG); id., comment., n. 3 (adopting INA definition of aggravated felony). B Although petitioner Jose Antonio Lopez entered the United States illegally in 1986, in 1990 he became a legal permanent resident. In 1997, he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person’s possession of cocaine, and was sentenced to five years’ imprisonment. See S. D. Codified Laws §22–42–5 (1988); §22–6–1 (Supp. 1997); §22–3–3 (1988). He was released for good conduct after 15 months. After his release, the Immigration and Naturalization Service (INS)[Footnote 1] began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U. S. C. §1227(a)(2)(B)(i), and was also for an aggravated felony, see §1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See §1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez’s drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (2002) (announcing that BIA decisions would conform to the applicable Circuit law); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997) (per curiam) (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him removed. The BIA affirmed, and the Court of Appeals affirmed the BIA, 417 F. 3d 934 (CA8 2005).[Footnote 2] We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA.[Footnote 3] 547 U. S. ___ (2006). We now reverse. II The INA makes Lopez guilty of an aggravated felony if he has been convicted of “illicit trafficking in a controlled substance … including,” but not limited to, “a drug trafficking crime (as defined in section 924(c) of title 18).” 8 U. S. C. §1101(a)(43)(B). Lopez’s state conviction was for helping someone else possess cocaine in South Dakota, which state law treated as the equivalent of possessing the drug, S. D. Codified Laws §22–3–3, a state felony, §22–42–5. Mere possession is not, however, a felony under the federal CSA, see 21 U. S. C. §844(a), although possessing more than what one person would have for himself will support conviction for the federal felony of possession with intent to distribute, see §841 (2000 ed. and Supp. III); United States v. Kates, 174 F. 3d 580, 582 (CA5 1999) (per curiam) (“Intent to distribute may be inferred from the possession of a quantity of drugs too large to be used by the defendant alone”). Despite this federal misdemeanor treatment, the Government argues that possession’s felonious character as a state crime can turn it into an aggravated felony under the INA. There, it says, illicit trafficking includes a drug trafficking crime as defined in federal Title 18. Title 18 defines “drug trafficking crime” as “any felony punishable under the Controlled Substances Act (21 U. S. C. 801 et seq.),” §924(c)(2), and the CSA punishes possession, albeit as a misdemeanor, see §405(a), 102 Stat. 4384, as renumbered and amended by §1002(g), 104 Stat. 4828, 21 U. S. C. §844(a). That is enough, says the Government, because §924(c)(2) requires only that the offense be punishable, not that it be punishable as a federal felony. Hence, a prior conviction in state court will satisfy the felony element because the State treats possession that way. There are a few things wrong with this argument, the first being its incoherence with any commonsense conception of “illicit trafficking,” the term ultimately being defined. The everyday understanding of “trafficking” should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant. FDIC v. Meyer, 510 U. S. 471, 476 (1994). And ordinarily “trafficking” means some sort of commercial dealing. See Black’s Law Dictionary 1534 (8th ed. 2004) (defining to “traffic” as to “trade or deal in (goods, esp. illicit drugs or other contraband)”); see also Urena-Ramirez v. Ashcroft, 341 F. 3d 51, 57 (CA1 2003) (similar definition); State v. Ezell, 321 S. C. 421, 425, 468 S. E. 2d 679, 681 (App. 1996) (same). Commerce, however, was no part of Lopez’s South Dakota offense of helping someone else to possess, and certainly it is no element of simple possession, with which the State equates that crime. Nor is the anomaly of the Government’s reading limited to South Dakota cases: while federal law typically treats trafficking offenses as felonies and nontrafficking offenses as misdemeanors, several States deviate significantly from this pattern.[Footnote 4] Reading §924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government’s position. Cf. Leocal v. Ashcroft, 543 U. S. 1, 11 (2004) (“[W]e cannot forget that we ultimately are determining the meaning of the term ‘crime of violence’ ”). Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean “ ‘just what [he chose] it to mean—neither more nor less,’ ”[Footnote 5] and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.[Footnote 6] First, an offense that necessarily counts as “illicit trafficking” under the INA is a “drug trafficking crime” under §924(c), that is, a “felony punishable under the [CSA],” §924(c)(2). And if we want to know what felonies might qualify, the place to go is to the definitions of crimes punishable as felonies under the Act; where else would one naturally look? Although the Government would have us look to state law, we suspect that if Congress had meant us to do that it would have found a much less misleading way to make its point. Indeed, other parts of §924 expressly refer to guilt under state law, see §§924(g)(3), (k)(2), and the implication confirms that the reference solely to a “felony punishable under the [CSA]” in §924(c)(2) is to a crime punishable as a felony under the federal Act. See 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 section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (alteration in original; internal quotation marks omitted)). Unless a state offense is punishable as a federal felony it does not count. The Government stresses that the text does not read “punishable as a felony,” and that by saying simply “punishable” Congress left the door open to counting state felonies, so long as they would be punishable at all under the CSA. But we do not normally speak or write the Government’s way. We do not use a phrase like “felony punishable under the [CSA]” when we mean to signal or allow a break between the noun “felony” and the contiguous modifier “punishable under the [CSA],” let alone a break that would let us read the phrase as if it said “felony punishable under the CSA whether or not as a felony.” Regular usage points in the other direction, and when we read “felony punishable under the … Act,” we instinctively understand “felony punishable as such under the Act” or “felony as defined by the Act.”[Footnote 7] Without some further explanation, using the phrase to cover even a misdemeanor punishable under the Act would be so much trickery, violating “the cardinal rule that statutory language must be read in context.” General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 596 (2004) (internal quotation marks and brackets omitted). That is why our interpretive regime reads whole sections of a statute together to fix on the meaning of any one of them, and the last thing this approach would do is divorce a noun from the modifier next to it without some extraordinary reason. The Government thinks it has a good enough reason for doing just that, in the INA provision already mentioned, that the term “aggravated felony” “applies to an offense described in this paragraph whether in violation of Federal or State law.” 8 U. S. C. §1101(a)(43). But before this provision is given the Government’s expansive treatment, it makes sense to ask whether it would have some use short of wrenching the expectations raised by normal English usage, and in fact it has two perfectly straightforward jobs to do: it provides that a generic description of “an offense … in this paragraph,” one not specifically couched as a state offense or a federal one, covers either one, and it confirms that a state offense whose elements include the elements of a felony punishable under the CSA is an aggravated felony. Thus, if Lopez’s state crime actually fell within the general term “illicit trafficking,” the state felony conviction would count as an “aggravated felony,” regardless of the existence of a federal felony counterpart; and a state offense of possessing more than five grams of cocaine base is an aggravated felony because it is a felony under the CSA, 21 U. S. C. §844(a).[Footnote 8] The Government’s reliance on the penultimate sentence of 8 U. S. C. §1101(a)(43) is misplaced for a second reason. The Government tries to justify its unusual reading of a defined term in the criminal code on the basis of a single sentence in the INA. But nothing in the penultimate sentence of §1101(a)(43) suggests that Congress changed the meaning of “felony punishable under the [CSA]” when it took that phrase from Title 18 and incorporated it into Title 8’s definition of “aggravated felony.” Yet the Government admits it has never begun a prosecution under 18 U. S. C. §924(c)(1)(A) where the underlying “drug trafficking crime” was a state felony but a federal misdemeanor. See Tr. of Oral Arg. 33–36. This is telling: the failure of even a single eager Assistant United States Attorney to act on the Government’s interpretation of “felony punishable under the [CSA]” in the very context in which that phrase appears in the United States Code belies the Government’s claim that its interpretation is the more natural one.[Footnote 9] Finally, the Government’s reading would render the law of alien removal, see 8 U. S. C. §1229b(a)(3), and the law of sentencing for illegal entry into the country, see USSG §2L1.2, dependent on varying state criminal classifications even when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose. It may not be all that remarkable that federal consequences of state crimes will vary according to state severity classification when Congress describes an aggravated felony in generic terms, without express reference to the definition of a crime in a federal statute (as in the case of “illicit trafficking in a controlled substance”). But it would have been passing strange for Congress to intend any such result when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an “aggravated felony” (like the §924(c)(2) definition of “drug trafficking crime”). We cannot imagine that Congress took the trouble to incorporate its own statutory scheme of felonies and misdemeanors if it meant courts to ignore it whenever a State chose to punish a given act more heavily. Two examples show the untoward consequences of the Government’s approach. Consider simple possession of marijuana. Not only is it a misdemeanor under the CSA, see 21 U. S. C. §844(a), but the INA expressly excludes “a single offense involving possession for one’s own use of 30 grams or less” from the controlled substance violations that are grounds for deportation, 8 U. S. C. §1227(a) (2)(B)(i). Yet by the Government’s lights, if a State makes it a felony to possess a gram of marijuana the congressional judgment is supplanted, and a state convict is subject to mandatory deportation because the alien is ineligible for cancellation of removal. See §1229b(a)(3).[Footnote 10] There is no hint in the statute’s text that Congress was courting any such state-by-state disparity. The situation in reverse flouts probability just as much. Possessing more than five grams of cocaine base is a felony under federal law. See 21 U. S. C. §844(a). If a State drew the misdemeanor-felony line at six grams plus, a person convicted in state court of possessing six grams would not be guilty of an aggravated felony on the Government’s reading, which makes the law of the convicting jurisdiction dispositive. See Brief for Respondent 48. Again, it is just not plausible that Congress meant to authorize a State to overrule its judgment about the consequences of federal offenses to which its immigration law expressly refers. True, the argument is not all one-sided. The Government points out that some States graduate offenses of drug possession from misdemeanor to felony depending on quantity, whereas Congress generally treats possession alone as a misdemeanor whatever the amount (but leaves it open to charge the felony of possession with intent to distribute when the amount is large). Thus, an alien convicted by a State of possessing large quantities of drugs would escape the aggravated felony designation simply for want of a federal felony defined as possessing a substantial amount. This is so, but we do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them. In sum, we hold that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. 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. Footnote 1 The INS’s immigration-enforcement functions are now handled by the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. See Clark v. Martinez, 543 U. S. 371, 374, n. 1 (2005). Footnote 2 Although the Government has deported Lopez, we agree with the parties that the case is not moot. Lopez can benefit from relief in this Court by pursuing his application for cancellation of removal, which the Immigration Judge refused to consider after determining that Lopez had committed an aggravated felony. Footnote 3 Compare United States v. Wilson, 316 F. 3d 506 (CA4 2003) (state-law felony is an aggravated felony); United States v. Simon, 168 F. 3d 1271 (CA11 1999) (same); United States v. Hinojosa-Lopez, 130 F. 3d 691 (CA5 1997) (same); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997) (per curiam) (same); United States v. Cabrera-Sosa, 81 F. 3d 998 (CA10 1996) (same); United States v. Restrepo-Aguilar, 74 F. 3d 361 (CA1 1996) (same), with Gonzales-Gomez v. Achim, 441 F. 3d 532 (CA7 2006) (state-law felony is not an aggravated felony); United States v. Palacios-Suarez, 418 F. 3d 692 (CA6 2005) (same); Gerbier v. Holmes, 280 F. 3d 297 (CA3 2002) (same). Two Circuits have construed the aggravated felony definition one way in the sentencing context and another in the immigration context. Compare United States v. Ibarra-Galindo, 206 F. 3d 1337 (CA9 2000) (in sentencing case, state-law felony is an aggravated felony); United States v. Pornes-Garcia, 171 F. 3d 142 (CA2 1999) (same), with Cazarez-Gutierrez v. Ashcroft, 382 F. 3d 905 (CA9 2004) (in immigration case, state-law felony is not an aggravated felony); Aguirre v. INS, 79 F. 3d 315 (CA2 1996) (same). Footnote 4 Several States punish possession as a felony. See, e. g., S. D. Codified Laws §§22–42–5 (2004), 22–6–1 (2005 Supp.); Tex. Health & Safety Code Ann. §481.115 (West 2003); Tex. Penal Code Ann. §§12.32–12.35 (West 2003); see also n. 10, infra. In contrast, with a few exceptions, the CSA punishes drug possession offenses as misdemeanors (that is, by one year’s imprisonment or less, cf. 18 U. S. C. §3559(a)), see 21 U. S. C. §844(a) (providing for “a term of imprisonment of not more than 1 year” for possession offenses except for repeat offenders, persons who possess more than five grams of cocaine base, and persons who possess flunitrazepam), and trafficking offenses as felonies, see §841 (2000 ed. and Supp. III). Footnote 5 L. Carroll, Alice in Wonderland and Through the Looking Glass 198 (Messner 1982). Footnote 6 Of course, we must acknowledge that Congress did counterintuitively define some possession offenses as “illicit trafficking.” Those state possession crimes that correspond to felony violations of one of the three statutes enumerated in §924(c)(2), such as possession of cocaine base and recidivist possession, see 21 U. S. C. §844(a), clearly fall within the definitions used by Congress in 8 U. S. C. §1101(a)(43)(B) and 18 U. S. C. §924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute “illicit trafficking in a controlled substance” or “drug trafficking” as those terms are used in ordinary speech. But this coerced inclusion of a few possession offenses in the definition of “illicit trafficking” does not call for reading the statute to cover others for which there is no clear statutory command to override ordinary meaning. Footnote 7 With respect to this last possibility, for purposes of §924(c)(2) the crimes the CSA defines as “felonies” are those crimes to which it assigns a punishment exceeding one year’s imprisonment. As the Government wisely concedes, see Brief for Respondent 25, although for its own purposes the CSA defines the term “felony” standing alone as “any Federal or State offense classified by applicable Federal or State law as a felony,” 21 U. S. C. §802(13), that definition does not apply here: §924(c)(2) refers to a felony “punishable under the [CSA],” not to conduct punishable under some other law but defined as a felony by the CSA. Footnote 8 Although the parties agree that Congress added the provision that both state and federal offenses qualify as aggravated felonies to codify the BIA’s decision in Matter of Barrett, 20 I. & N. Dec. 171 (1990), see also H. R. Rep. No. 101–681, pt. 1, p. 147 (1990) (noting that the provision reflects congressional approval of Barrett), our enquiry requires looking beyond Congress’s evident acceptance of Barrett. In Barrett, the BIA held only that the phrase “ ‘drug trafficking crime’ ” includes state “crimes analogous to offenses under the Controlled Substances Act,” Barrett, supra, at 177, 178, without specifying whether a state crime must be “analogous” to a CSA felony, as opposed to a CSA misdemeanor, to count. Footnote 9 Contrary to the Government’s response at oral argument, such a prosecution should be possible under the Government’s proffered interpretation because this subset of “drug trafficking crime[s]” still “may be prosecuted in a court of the United States,” 18 U. S. C. §924(c)(1)(A), albeit at the misdemeanor level. For the same reason, the dissent’s argument that our reading renders superfluous the requirement in §924(c)(1)(A) that the crime “may be prosecuted in a court of the United States” misses the mark. Post, at 3 (opinion of Thomas, J.). That phrase would be no less superfluous under the dissent’s preferred reading, which would still require that the offense be “capable of punishment under the Controlled Substances Act,” post, at 1, and therefore subject to prosecution in federal court. Footnote 10 Indeed, several States treat possession of less than 30 grams of marijuana as a felony. See Fla. Stat. §§893.13(6)(a)–(b), 775.082(3)(d) (2006) (punishing possession of over 20 grams of marijuana as a felony); Nev. Rev. Stat. §§453.336(1)–(2) (2004), §§453.336(4), 193.130 (2003) (punishing possession of more than one ounce, or 28.3 grams, of marijuana as a felony); N. D. Cent. Code Ann. §§19–03.1–23(6) (Lexis Supp. 2005), 12.1–32–01(4) (Lexis 1997) (same); Ore. Rev. Stat. §161.605(3) (2003), Act Relating to Controlled Substances, §33, 2005 Ore. Laws p. 2006 (same).
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549.US.365
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In filing his petition under Chapter 7 of the Bankruptcy Code, petitioner Marrama misrepresented the value of his Maine property and that he had not transferred it during the preceding year. Respondent DeGiacomo, the trustee of Marrama’s estate, stated his intention to recover the Maine property as an estate asset. Thereafter, Marrama sought to convert the proceeding to Chapter 13, but the trustee and respondent bank, Marrama’s principal creditor, objected, contending that the request to convert was made in bad faith and would constitute an abuse of the bankruptcy process. The Bankruptcy Judge denied Marrama’s request, finding bad faith. Affirming, the First Circuit’s Bankruptcy Appellate Panel rejected Marrama’s argument that he had an absolute right to convert under §706(a) of the Bankruptcy Code, which provides that a Chapter 7 debtor “may convert a case” so long as it has not been converted previously, and that a waiver of the right to convert is unenforceable. The First Circuit also rejected that argument, emphasizing, inter alia, that a bankruptcy court has the authority to dismiss a Chapter 13 petition based on a debtor’s bad faith, and that a first-time motion to convert a Chapter 7 case to Chapter 13 should not be treated differently from the filing of a Chapter 13 petition in the first instance. Held: Marrama forfeited his right to proceed under Chapter 13. The broad description of the right to convert as “absolute” in Senate and House Committee Reports fails to give full effect to the express limitation of §706(d), which provides that “a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter.” That text expressly conditioned Marrama’s right to convert on his ability to qualify as a Chapter 13 “debtor.” Marrama does not qualify as such a debtor under §1307(c), which provides that a Chapter 13 proceeding may be either dismissed or converted to a Chapter 7 proceeding “for cause.” Bankruptcy courts routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words “for cause,” and a ruling that an individual’s Chapter 13 case should be dismissed or converted to Chapter 7 because of bad faith is tantamount to a ruling that the individual does not qualify as a Chapter 13 debtor. Congress gave “ ‘honest but unfortunate debtor[s]’ ” Grogan v. Garner, 498 U. S. 279, 287, the chance to repay their debts should they acquire the means to do so, and §706(a) protects a debtor from being forced to waive that right. However, a provision protecting a borrower from waiver is not a shield against forfeiture. Neither §706 nor §1307(c) limits a court’s authority to take appropriate action in response to fraudulent conduct by the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor. On the contrary, bankruptcy judges’ broad authority to take necessary or appropriate action “to prevent an abuse of process” described in Code §105(a) is adequate to authorize an immediate denial of a §706 motion to convert in lieu of a conversion order that merely postpones the allowance of equivalent relief and may give a debtor an opportunity to take action prejudicial to creditors. Pp. 5–10. 430 F. 3d 474, affirmed. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.
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The principal purpose of the Bankruptcy Code is to grant a “ ‘fresh start’ ” to the “ ‘honest but unfortunate debtor.’ ” Grogan v. Garner, 498 U. S. 279, 286, 287 (1991). Both Chapter 7 and Chapter 13 of the Code permit an insolvent individual to discharge certain unpaid debts toward that end. Chapter 7 authorizes a discharge of prepetition debts following the liquidation of the debtor’s assets by a bankruptcy trustee, who then distributes the proceeds to creditors. Chapter 13 authorizes an individual with regular income to obtain a discharge after the successful completion of a payment plan approved by the bankruptcy court. Under Chapter 7 the debtor’s non-exempt assets are controlled by the bankruptcy trustee; under Chapter 13 the debtor retains possession of his property. A proceeding that is commenced under Chapter 7 may be converted to a Chapter 13 proceeding and vice versa. 11 U. S. C. §§706(a), 1307(a) and (c). An issue that has arisen with disturbing frequency is whether a debtor who acts in bad faith prior to, or in the course of, filing a Chapter 13 petition by, for example, fraudulently concealing significant assets, thereby forfeits his right to obtain Chapter 13 relief. The issue may arise at the outset of a Chapter 13 case in response to a motion by creditors or by the United States trustee either to dismiss the case or to convert it to Chapter 7, see §1307(c). It also may arise in a Chapter 7 case when a debtor files a motion under §706(a) to convert to Chapter 13. In the former context, despite the absence of any statutory provision specifically addressing the issue, the federal courts are virtually unanimous that prepetition bad-faith conduct may cause a forfeiture of any right to proceed with a Chapter 13 case.[Footnote 1] In the latter context, however, some courts have suggested that even a bad-faith debtor has an absolute right to convert at least one Chapter 7 proceeding into a Chapter 13 case even though the case will thereafter be dismissed or immediately returned to Chapter 7.[Footnote 2] We granted certiorari to decide whether the Code mandates that procedural anomaly. 547 U. S. ____ (2006). I On March 11, 2003, petitioner, Robert Marrama, filed a voluntary petition under Chapter 7, thereby creating an estate consisting of all his property “wherever located and by whomever held.” 11 U. S. C. §541(a). Respondent Mark DeGiacomo is the trustee of that estate. Respondent Citizens Bank of Massachusetts (hereinafter Bank) is the principal creditor. In verified schedules attached to his petition, Marrama made a number of statements about his principal asset, a house in Maine, that were misleading or inaccurate. For instance, while he disclosed that he was the sole beneficiary of the trust that owned the property, he listed its value as zero. He also denied that he had transferred any property other than in the ordinary course of business during the year preceding the filing of his petition. Neither statement was true. In fact, the Maine property had substantial value, and Marrama had transferred it into the newly created trust for no consideration seven months prior to filing his Chapter 13 petition. Marrama later admitted that the purpose of the transfer was to protect the property from his creditors. After Marrama’s examination at the meeting of creditors, see 11 U. S. C. §341, the trustee advised Marrama’s counsel that he intended to recover the Maine property as an asset of the estate. Thereafter, Marrama filed a “Verified Notice of Conversion to Chapter 13.” Pursuant to Federal Rule of Bankruptcy Procedure 1017(c)(2), the notice of conversion was treated as a motion to convert, to which both the trustee and the Bank filed objections. Relying primarily on Marrama’s attempt to conceal the Maine property from his creditors,[Footnote 3] the trustee contended that the request to convert was made in bad faith and would constitute an abuse of the bankruptcy process. The Bank opposed the conversion on similar grounds. At the hearing on the conversion issue, Marrama explained through counsel that his misstatements about the Maine property were attributable to “scrivener’s error,” that he had originally filed under Chapter 7 rather than Chapter 13 because he was then unemployed, and that he had recently become employed and was therefore eligible to proceed under Chapter 13.[Footnote 4] The Bankruptcy Judge rejected these arguments, ruling that there is no “Oops” defense to the concealment of assets and that the facts established a “bad faith” case. App. 34a–35a. The judge denied the request for conversion. Marrama’s principal argument on appeal to the Bankruptcy Appellate Panel for the First Circuit[Footnote 5] was that he had an absolute right to convert his case from Chapter 7 to Chapter 13 under the plain language of §706(a) of the Code. The panel affirmed the decision of the Bankruptcy Court. It construed §706(a), when read in connection with other provisions of the Code and the Bankruptcy Rules, as creating a right to convert a case from Chapter 7 to Chapter 13 that “is absolute only in the absence of extreme circumstances.” In re Marrama, 313 B. R. 525, 531 (2004). In concluding that the record disclosed such circumstances, the panel relied on Marrama’s failure to describe the transfer of the Maine residence into the revocable trust, his attempt to obtain a homestead exemption on rental property in Massachusetts, and his nondisclosure of an anticipated tax refund. On appeal from the panel, the Court of Appeals for the First Circuit also rejected the argument that §706(a) gives a Chapter 7 debtor an absolute right to convert to Chapter 13. In addition to emphasizing that the statute uses the word “may” rather than “shall,” the court added: “In construing subsection 706(a), it is important to bear in mind that the bankruptcy court has unquestioned authority to dismiss a chapter 13 petition—as distinguished from converting the case to chapter 13—based upon a showing of ‘bad faith’ on the part of the debtor. We can discern neither a theoretical nor a practical reason that Congress would have chosen to treat a first-time motion to convert a chapter 7 case to chapter 13 under subsection 706(a) differently from the filing of a chapter 13 petition in the first instance.” In re Marrama, 430 F. 3d 474, 479 (2005) (citations omitted). While other Courts of Appeals and bankruptcy appellate panels have refused to recognize any “bad faith” exception to the conversion right created by §706(a), see n. 2, supra, we conclude that the courts in this case correctly held that Marrama forfeited his right to proceed under Chapter 13. II The two provisions of the Bankruptcy Code most relevant to our resolution of the issue are subsections (a) and (d) of 11 U. S. C. §706, which provide: “(a) The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable. “(d) Notwithstanding any other provision of this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter.” Petitioner contends that subsection (a) creates an unqualified right of conversion. He seeks support from language in both the House and Senate Committee Reports on the provision. The Senate Report stated: “Subsection (a) of this section gives the debtor the one-time absolute right of conversion of a liquidation case to a reorganization or individual repayment plan case. If the case has already once been converted from chapter 11 or 13 to chapter 7, then the debtor does not have that right. The policy of the provision is that the debtor should always be given the opportunity to repay his debts, and a waiver of the right to convert a case is unenforceable.” S. Rep. No. 95–989, p. 94 (1978); see also H. R. Rep. No. 95–595, p. 380 (1977) (using nearly identical language). The Committee Reports’ reference to an “absolute right” of conversion is more equivocal than petitioner suggests. Assuming that the described debtor’s “opportunity to repay his debts” is a short-hand reference to a right to proceed under Chapter 13, the statement that he should “always” have that right is inconsistent with the earlier recognition that it is only a one-time right that does not survive a previous conversion to, or filing under, Chapter 13. More importantly, the broad description of the right as “absolute” fails to give full effect to the express limitation in subsection (d). The words “unless the debtor may be a debtor under such chapter” expressly conditioned Marrama’s right to convert on his ability to qualify as a “debtor” under Chapter 13. There are at least two possible reasons why Marrama may not qualify as such a debtor, one arising under §109(e) of the Code, and the other turning on the construction of the word “cause” in §1307(c). The former provision imposes a limit on the amount of indebtedness that an individual may have in order to qualify for Chapter 13 relief.[Footnote 6] More pertinently,[Footnote 7] the latter provision, §1307(c), provides that a Chapter 13 proceeding may be either dismissed or converted to a Chapter 7 proceeding “for cause” and includes a nonexclusive list of 10 causes justifying that relief.[Footnote 8] None of the specified causes mentions prepetition bad-faith conduct (although subparagraph 10 does identify one form of Chapter 7 error—which is necessarily prepetition conduct—that would justify dismissal of a Chapter 13 case).[Footnote 9] Bankruptcy courts nevertheless routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words “for cause.” See n. 1, supra. In practical effect, a ruling that an individual’s Chapter 13 case should be dismissed or converted to Chapter 7 because of prepetition bad-faith conduct, including fraudulent acts committed in an earlier Chapter 7 proceeding, is tantamount to a ruling that the individual does not qualify as a debtor under Chapter 13. That individual, in other words, is not a member of the class of “ ‘honest but unfortunate debtor[s]’ ” that the bankruptcy laws were enacted to protect. See Grogan v. Garner, 498 U. S., at 287. The text of §706(d) therefore provides adequate authority for the denial of his motion to convert. The class of honest but unfortunate debtors who do possess an absolute right to convert their cases from Chapter 7 to Chapter 13 includes the vast majority of the hundreds of thousands of individuals who file Chapter 7 petitions each year.[Footnote 10] Congress sought to give these individuals the chance to repay their debts should they acquire the means to do so. Moreover, as the Court of Appeals observed, the reference in §706(a) to the unenforceability of a waiver of the right to convert functions “as a consumer protection provision against adhesion contracts, whereby a debtor’s creditors might be precluded from attempting to prescribe a waiver of the debtor’s right to convert to chapter 13 as a non-negotiable condition of its contractual agreements.” 430 F. 3d, at 479. A statutory provision protecting a borrower from waiver is not a shield against forfeiture. Nothing in the text of either §706 or §1307(c) (or the legislative history of either provision) limits the authority of the court to take appropriate action in response to fraudulent conduct by the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor.[Footnote 11] On the contrary, the broad authority granted to bankruptcy judges to take any action that is necessary or appropriate “to prevent an abuse of process” described in §105(a) of the Code,[Footnote 12] is surely adequate to authorize an immediate denial of a motion to convert filed under §706 in lieu of a conversion order that merely postpones the allowance of equivalent relief and may provide a debtor with an opportunity to take action prejudicial to creditors.[Footnote 13] Indeed, as the Solicitor General has argued in his brief amicus curiae, even if §105(a) had not been enacted, the inherent power of every federal court to sanction “abusive litigation practices,” see Roadway Express, Inc. v. Piper, 447 U. S. 752, 765 (1980), might well provide an adequate justification for a prompt, rather than a delayed, ruling on an unmeritorious attempt to qualify as a debtor under Chapter 13. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 See, e.g., In re Alt, 305 F. 3d 413, 418–419 (CA6 2002); In re Leavitt, 171 F. 3d 1219, 1224 (CA9 1999); In re Kestell, 99 F. 3d 146, 148 (CA4 1996); In re Molitor, 76 F. 3d 218, 220 (CA8 1996); In re Gier, 986 F. 2d 1326, 1329–1330 (CA10 1993); In re Love, 957 F. 2d 1350, 1354 (CA7 1992); In re Sullivan, 326 B. R. 204, 211 (Bkrtcy. App. Panel CA1 2005). Footnote 2 See, e.g., In re Martin, 880 F. 2d 857, 859 (CA5 1989); In re Croston, 313 B. R. 447 (Bkrtcy. App. Panel CA9 2004); In re Miller, 303 B. R. 471 (Bkrtcy. App. Panel CA10 2003). Footnote 3 The trustee also noted that in his original verified schedules Marrama had claimed a property in Gloucester, Mass., as a homestead exemption, see 11 U. S. C. §522(b)(2); Mass. Gen. Laws, ch. 188, §1 (West 2005), but testified at the meeting of creditors that he did not reside at the property and was receiving rental income from it, App. 71a–72a. Moreover, when asked at the meeting whether anyone owed him any money, Marrama responded “No,” id., at 50a, and in response to a similar question on Schedule B to his petition, which specifically requested a description of any “tax refunds,” Marrama indicated that he had “none.” Supp. App. 6. In fact, Marrama had filed an amended tax return in July 2002 in which he claimed the right to a refund, and shortly before the hearing on the motion to convert, the Internal Revenue Service informed the trustee that Marrama was entitled to a refund of $8,745.86, App. 30a–31a. Footnote 4 The parties dispute the accuracy of this representation. The trustee’s brief notes that Schedule I to Marrama’s original petition indicates that he had been employed by a flooring company at the time the case was filed. See Brief for Respondent Mark G. DeGiacomo 10, n. 7 (citing Supp. App. 18, 30). Marrama’s counsel stated during oral argument, however, that the income listed in Schedule I represented an estimate based on employment that had not yet begun. Tr. of Oral Arg. 24. Since the sufficiency of the evidence of bad faith is not at issue, we may assume that Marrama did have more income available when he sought to convert than when he commenced the Chapter 7 case. Footnote 5 The judicial council of any circuit is authorized by statute to establish a bankruptcy appellate panel service, comprising bankruptcy judges, to hear appeals from the bankruptcy courts with the consent of the parties. See 28 U. S. C. §158(b); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 252 (1992). The First Circuit has established this service. Footnote 6 Subsection (e) of 11 U. S. C. §109 provides: “Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title.” These dollar limits are subject to adjustment for inflation every three years. See §104(b). Footnote 7 Marrama initiated a new Chapter 13 case the day after we granted certiorari in the present case. The new case was dismissed on the grounds that, under §109(e), he was ineligible to be a Chapter 13 debtor. See In re Marrama, 345 B. R. 458, 463–464, and n. 10 (Bkrtcy. Ct. Mass. 2006). As the Bankruptcy Judge made no such determination on the record before us in this case, and as it is not necessary to our decision that such a determination be made, we do not consider whether Marrama fails to meet the §109(e) debt limit. Footnote 8 Title II U. S. C. §1307(c) provides, in relevant part: “Except as provided in subsection (e) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including— “(1) unreasonable delay by the debtor that is prejudicial to creditors; “(2) nonpayment of any fees and charges required under chapter 123 of title 28; “(3) failure to file a plan timely under section 1321 of this title; “(10) only on request of the United States trustee, failure to timely file the information required by paragraph (2) of section 521.” Section 521(2), which has since been amended and redesignated as §521(a)(2), see 119 Stat. 38, imposes a duty on a debtor in a Chapter 7 proceeding to file within a certain time period a statement of intent with respect to the retention or surrender of property being used to secure debts. See 11 U. S. C. A. §521(a)(2), (2004 ed. and Supp. 2006). Footnote 9 Indeed, because §521(2) by its terms applies only to Chapter 7 debtors, at least one prominent treatise has assumed that this subsection could only apply to a debtor who has converted a case from Chapter 7 to Chapter 13. See 8 Collier on Bankruptcy ¶1307.04[9] (15th ed. rev. 2006). Footnote 10 We are advised by the Administrative Office of the United States Courts that 833,148 Chapter 7 cases were filed in fiscal year 2006. Memorandum from Steven R. Schlesinger, Administrative Office of the United States Courts, to Supreme Court Library (Dec. 13, 2006) (available in Clerk of Court’s case file). Footnote 11 We have no occasion here to articulate with precision what conduct qualifies as “bad faith” sufficient to permit a bankruptcy judge to dismiss a Chapter 13 case or to deny conversion from Chapter 7. It suffices to emphasize that the debtor’s conduct must, in fact, be atypical. Limiting dismissal or denial of conversion to extraordinary cases is particularly appropriate in light of the fact that lack of good faith in proposing a Chapter 13 plan is an express statutory ground for denying plan confirmation. 11 U. S. C. §1325(a)(3); see In re Love, 957 F. 2d, at 1356 (“Because dismissal is harsh . . . the bankruptcy court should be more reluctant to dismiss a petition … for lack of good faith than to reject a plan for lack of good faith under Section 1325(a)”). Footnote 12 Title II U. S. C. §105(a) provides: “The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sU. S.onte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.” Footnote 13 Both the Chapter 7 trustee and the United States as amicus curiae argue in their briefs that in the interval between the allowance of a motion to convert under §706(a) and the subsequent granting of a motion to dismiss under §1307(c), the fact that the debtor would have possession of the property formerly under the control of the trustee would create an opportunity for the debtor to take actions that would impair the rights of creditors. Whether or not that risk is significant, under our understanding of the Code, the debtor’s prior misconduct may provide a sufficient justification for a denial of his motion to convert.
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549.US.497
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Based on respected scientific opinion that a well-documented rise in global temperatures and attendant climatological and environmental changes have resulted from a significant increase in the atmospheric concentration of “greenhouse gases,” a group of private organizations petitioned the Environmental Protection Agency (EPA) to begin regulating the emissions of four such gases, including carbon dioxide, under §202(a)(1) of the Clean Air Act, which requires that the EPA “shall by regulation prescribe … standards applicable to the emission of any air pollutant from any class … of new motor vehicles … which in [the EPA Administrator’s] judgment cause[s], or contribute[s] to, air pollution … reasonably … anticipated to endanger public health or welfare,” 42 U. S. C. §7521(a)(1). The Act defines “air pollutant” to include “any air pollution agent … , including any physical, chemical … substance … emitted into … the ambient air.” §7602(g). EPA ultimately denied the petition, reasoning that (1) the Act does not authorize it to issue mandatory regulations to address global climate change, and (2) even if it had the authority to set greenhouse gas emission standards, it would have been unwise to do so at that time because a causal link between greenhouse gases and the increase in global surface air temperatures was not unequivocally established. The agency further characterized any EPA regulation of motor-vehicle emissions as a piecemeal approach to climate change that would conflict with the President’s comprehensive approach involving additional support for technological innovation, the creation of nonregulatory programs to encourage voluntary private-sector reductions in greenhouse gas emissions, and further research on climate change, and might hamper the President’s ability to persuade key developing nations to reduce emissions. Petitioners, now joined by intervenor Massachusetts and other state and local governments, sought review in the D. C. Circuit. Although each of the three judges on the panel wrote separately, two of them agreed that the EPA Administrator properly exercised his discretion in denying the rulemaking petition. One judge concluded that the Administrator’s exercise of “judgment” as to whether a pollutant could “reasonably be anticipated to endanger public health or welfare,” §7521(a)(1), could be based on scientific uncertainty as well as other factors, including the concern that unilateral U. S. regulation of motor-vehicle emissions could weaken efforts to reduce other countries’ greenhouse gas emissions. The second judge opined that petitioners had failed to demonstrate the particularized injury to them that is necessary to establish standing under Article III, but accepted the contrary view as the law of the case and joined the judgment on the merits as the closest to that which he preferred. The court therefore denied review. Held: 1. Petitioners have standing to challenge the EPA’s denial of their rulemaking petition. Pp. 12–23. (a) This case suffers from none of the defects that would preclude it from being a justiciable Article III “Controvers[y].” See, e.g., Luther v. Borden, 7 How. 1. Moreover, the proper construction of a congressional statute is an eminently suitable question for federal-court resolution, and Congress has authorized precisely this type of challenge to EPA action, see 42 U. S. C. §7607(b)(1). Contrary to EPA’s argument, standing doctrine presents no insuperable jurisdictional obstacle here. To demonstrate standing, a litigant must show that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that a favorable decision will likely redress that injury. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561. However, a litigant to whom Congress has “accorded a procedural right to protect his concrete interests,” id., at 573, n. 7—here, the right to challenge agency action unlawfully withheld, §7607(b)(1)—“can assert that right without meeting all the normal standards for redressability and immediacy,” ibid. Only one petitioner needs to have standing to authorize review. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 52, n. 2. Massachusetts has a special position and interest here. It is a sovereign State and not, as in Lujan, a private individual, and it actually owns a great deal of the territory alleged to be affected. The sovereign prerogatives to force reductions in greenhouse gas emissions, to negotiate emissions treaties with developing countries, and (in some circumstances) to exercise the police power to reduce motor-vehicle emissions are now lodged in the Federal Government. Because congress has ordered EPA to protect Massachusetts (among others) by prescribing applicable standards, §7521(a)(1), and has given Massachusetts a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious, §7607(b)(1), petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent,” Lujan, 504 U. S., at 560, and there is a “substantial likelihood that the judicial relief requested” will prompt EPA to take steps to reduce that risk, Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 79. Pp. 12–17. (b) The harms associated with climate change are serious and well recognized. The Government’s own objective assessment of the relevant science and a strong consensus among qualified experts indicate that global warming threatens, inter alia, a precipitate rise in sea levels, severe and irreversible changes to natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences, and increases in the spread of disease and the ferocity of weather events. That these changes are widely shared does not minimize Massachusetts’ interest in the outcome of this litigation. See Federal Election Comm’n v. Akins, 524 U. S. 11, 24. According to petitioners’ uncontested affidavits, global sea levels rose between 10 and 20 centimeters over the 20th century as a result of global warming and have already begun to swallow Massachusetts’ coastal land. Remediation costs alone, moreover, could reach hundreds of millions of dollars. Pp. 17–19. (c) Given EPA’s failure to dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming, its refusal to regulate such emissions, at a minimum, “contributes” to Massachusetts’ injuries. EPA overstates its case in arguing that its decision not to regulate contributes so insignificantly to petitioners’ injuries that it cannot be haled into federal court, and that there is no realistic possibility that the relief sought would mitigate global climate change and remedy petitioners’ injuries, especially since predicted increases in emissions from China, India, and other developing nations will likely offset any marginal domestic decrease EPA regulation could bring about. Agencies, like legislatures, do not generally resolve massive problems in one fell swoop, see Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 489, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed, cf. SEC v. Chenery Corp., 332 U. S. 194, 202–203. That a first step might be tentative does not by itself negate federal-court jurisdiction. And reducing domestic automobile emissions is hardly tentative. Leaving aside the other greenhouse gases, the record indicates that the U. S. transportation sector emits an enormous quantity of carbon dioxide into the atmosphere. Pp. 20–21. (d) While regulating motor-vehicle emissions may not by itself reverse global warming, it does not follow that the Court lacks jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. See Larson v. Valente, 456 U. S. 228, 243, n. 15. Because of the enormous potential consequences, the fact that a remedy’s effectiveness might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. Nor is it dispositive that developing countries are poised to substantially increase greenhouse gas emissions: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere. The Court attaches considerable significance to EPA’s espoused belief that global climate change must be addressed. Pp. 21–23. 2. The scope of the Court’s review of the merits of the statutory issues is narrow. Although an agency’s refusal to initiate enforcement proceedings is not ordinarily subject to judicial review, Heckler v. Chaney, 470 U. S. 821, there are key differences between nonenforcement and denials of rulemaking petitions that are, as in the present circumstances, expressly authorized. EPA concluded alternatively in its petition denial that it lacked authority under §7521(a)(1) to regulate new vehicle emissions because carbon dioxide is not an “air pollutant” under §7602, and that, even if it possessed authority, it would decline to exercise it because regulation would conflict with other administration priorities. Because the Act expressly permits review of such an action, §7607(b)(1), this Court “may reverse [it if it finds it to be] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” §7607(d)(9). Pp. 24–25. 3. Because greenhouse gases fit well within the Act’s capacious definition of “air pollutant,” EPA has statutory authority to regulate emission of such gases from new motor vehicles. That definition—which includes “any air pollution agent … , including any physical, chemical, … substance … emitted into … the ambient air … ,” §7602(g) (emphasis added)—embraces all airborne compounds of whatever stripe. Moreover, carbon dioxide and other greenhouse gases are undoubtedly “physical [and] chemical … substance[s].” Ibid. EPA’s reliance on postenactment congressional actions and deliberations it views as tantamount to a command to refrain from regulating greenhouse gas emissions is unavailing. Even if postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA identifies nothing suggesting that Congress meant to curtail EPA’s power to treat greenhouse gases as air pollutants. The Court has no difficulty reconciling Congress’ various efforts to promote interagency collaboration and research to better understand climate change with the agency’s pre-existing mandate to regulate “any air pollutant” that may endanger the public welfare. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133, distinguished. Also unpersuasive is EPA’s argument that its regulation of motor-vehicle carbon dioxide emissions would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to the Department of Transportation. The fact that DOT’s mandate to promote energy efficiency by setting mileage standards may overlap with EPA’s environmental responsibilities in no way licenses EPA to shirk its duty to protect the public “health” and “welfare,” §7521(a)(1). Pp. 25–30. 4. EPA’s alternative basis for its decision—that even if it has statutory authority to regulate greenhouse gases, it would be unwise to do so at this time—rests on reasoning divorced from the statutory text. While the statute conditions EPA action on its formation of a “judgment,” that judgment must relate to whether an air pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7601(a)(1). Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. It has refused to do so, offering instead a laundry list of reasons not to regulate, including the existence of voluntary Executive Branch programs providing a response to global warming and impairment of the President’s ability to negotiate with developing nations to reduce emissions. These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment. Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so. The statutory question is whether sufficient information exists for it to make an endangerment finding. Instead, EPA rejected the rulemaking petition based on impermissible considerations. Its action was therefore “arbitrary, capricious, or otherwise not in accordance with law,” §7607(d)(9). On remand, EPA must ground its reasons for action or inaction in the statute. Pp. 30–32. 415 F. 3d 50, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
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A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.” Calling global warming “the most pressing environmental challenge of our time,”[Footnote 1] a group of States,[Footnote 2] local governments,[Footnote 3] and private organizations,[Footnote 4] alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide. Specifically, petitioners asked us to answer two questions concerning the meaning of §202(a)(1) of the Act: whether EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the statute. In response, EPA, supported by 10 intervening States[Footnote 5] and six trade associations,[Footnote 6] correctly argued that we may not address those two questions unless at least one petitioner has standing to invoke our jurisdiction under Article III of the Constitution. Notwithstanding the serious character of that jurisdictional argument and the absence of any conflicting decisions construing §202(a)(1), the unusual importance of the underlying issue persuaded us to grant the writ. 548 U. S. __ (2006). I Section 202(a)(1) of the Clean Air Act, as added by Pub. L. 89–272, §101(8), 79 Stat. 992, and as amended by, inter alia, 84 Stat. 1690 and 91 Stat. 791, 42 U. S. C. §7521(a)(1), provides: “The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare … .”[Footnote 7] The Act defines “air pollutant” to include “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive … substance or matter which is emitted into or otherwise enters the ambient air.” §7602(g). “Welfare” is also defined broadly: among other things, it includes “effects on … weather … and climate.” §7602(h). When Congress enacted these provisions, the study of climate change was in its infancy.[Footnote 8] In 1959, shortly after the U. S. Weather Bureau began monitoring atmospheric carbon dioxide levels, an observatory in Mauna Loa, Hawaii, recorded a mean level of 316 parts per million. This was well above the highest carbon dioxide concentration—no more than 300 parts per million—revealed in the 420,000-year-old ice-core record.[Footnote 9] By the time Congress drafted §202(a)(1) in 1970, carbon dioxide levels had reached 325 parts per million.[Footnote 10] In the late 1970’s, the Federal Government began devoting serious attention to the possibility that carbon dioxide emissions associated with human activity could provoke climate change. In 1978, Congress enacted the National Climate Program Act, 92 Stat. 601, which required the President to establish a program to “assist the Nation and the world to understand and respond to natural and man-induced climate processes and their implications,” id., §3. President Carter, in turn, asked the National Research Council, the working arm of the National Academy of Sciences, to investigate the subject. The Council’s response was unequivocal: “If carbon dioxide continues to increase, the study group finds no reason to doubt that climate changes will result and no reason to believe that these changes will be negligible… . A wait-and-see policy may mean waiting until it is too late.”[Footnote 11] Congress next addressed the issue in 1987, when it enacted the Global Climate Protection Act, Title XI of Pub. L. 100–204, 101 Stat. 1407, note following 15 U. S. C. §2901. Finding that “manmade pollution—the release of carbon dioxide, chlorofluorocarbons, methane, and other trace gases into the atmosphere—may be producing a long-term and substantial increase in the average temperature on Earth,” §1102(1), 101 Stat. 1408, Congress directed EPA to propose to Congress a “coordinated national policy on global climate change,” §1103(b), and ordered the Secretary of State to work “through the channels of multilateral diplomacy” and coordinate diplomatic efforts to combat global warming, §1103(c). Congress emphasized that “ongoing pollution and deforestation may be contributing now to an irreversible process” and that “[n]ecessary actions must be identified and implemented in time to protect the climate.” §1102(4). Meanwhile, the scientific understanding of climate change progressed. In 1990, the Intergovernmental Panel on Climate Change (IPCC), a multinational scientific body organized under the auspices of the United Nations, published its first comprehensive report on the topic. Drawing on expert opinions from across the globe, the IPCC concluded that “emissions resulting from human activities are substantially increasing the atmospheric concentrations of … greenhouse gases [which] will enhance the greenhouse effect, resulting on average in an additional warming of the Earth’s surface.”[Footnote 12] Responding to the IPCC report, the United Nations convened the “Earth Summit” in 1992 in Rio de Janeiro. The first President Bush attended and signed the United Nations Framework Convention on Climate Change (UNFCCC), a nonbinding agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of “prevent[ing] dangerous anthropogenic [i.e., human-induced] interference with the [Earth’s] climate system.”[Footnote 13] S. Treaty Doc. No. 102–38, Art. 2, p. 5 (1992). The Senate unanimously ratified the treaty. Some five years later—after the IPCC issued a second comprehensive report in 1995 concluding that “[t]he balance of evidence suggests there is a discernible human influence on global climate”[Footnote 14]—the UNFCCC signatories met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for industrialized nations to reduce greenhouse gas emissions. Because those targets did not apply to developing and heavily polluting nations such as China and India, the Senate unanimously passed a resolution expressing its sense that the United States should not enter into the Kyoto Protocol. See S. Res. 98, 105th Cong., 1st Sess. (July 25, 1997) (as passed). President Clinton did not submit the protocol to the Senate for ratification. II On October 20, 1999, a group of 19 private organizations[Footnote 15] filed a rulemaking petition asking EPA to regulate “greenhouse gas emissions from new motor vehicles under §202 of the Clean Air Act.” App. 5. Petitioners maintained that 1998 was the “warmest year on record”; that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are “heat trapping greenhouse gases”; that greenhouse gas emissions have significantly accelerated climate change; and that the IPCC’s 1995 report warned that “carbon dioxide remains the most important contributor to [man-made] forcing of climate change.” Id., at 13 (internal quotation marks omitted). The petition further alleged that climate change will have serious adverse effects on human health and the environment. Id., at 22–35. As to EPA’s statutory authority, the petition observed that the agency itself had already confirmed that it had the power to regulate carbon dioxide. See id., at 18, n. 21. In 1998, Jonathan Z. Cannon, then EPA’s General Counsel, prepared a legal opinion concluding that “CO2 emissions are within the scope of EPA’s authority to regulate,” even as he recognized that EPA had so far declined to exercise that authority. Id., at 54 (memorandum to Carol M. Browner, Administrator (Apr. 10, 1998) (hereinafter Cannon memorandum)). Cannon’s successor, Gary S. Guzy, reiterated that opinion before a congressional committee just two weeks before the rulemaking petition was filed. See id., at 61. Fifteen months after the petition’s submission, EPA requested public comment on “all the issues raised in [the] petition,” adding a “particular” request for comments on “any scientific, technical, legal, economic or other aspect of these issues that may be relevant to EPA’s consideration of this petition.” 66 Fed. Reg. 7486, 7487 (2001). EPA received more than 50,000 comments over the next five months. See 68 Fed. Reg. 52924 (2003). Before the close of the comment period, the White House sought “assistance in identifying the areas in the science of climate change where there are the greatest certainties and uncertainties” from the National Research Council, asking for a response “as soon as possible.” App. 213. The result was a 2001 report titled Climate Change: An Analysis of Some Key Questions (NRC Report), which, drawing heavily on the 1995 IPCC report, concluded that “[g]reenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising.” NRC Report 1. On September 8, 2003, EPA entered an order denying the rulemaking petition. 68 Fed. Reg. 52922. The agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, see id., at 52925–52929; and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time, id., at 52929–52931. In concluding that it lacked statutory authority over greenhouse gases, EPA observed that Congress “was well aware of the global climate change issue when it last comprehensively amended the [Clean Air Act] in 1990,” yet it declined to adopt a proposed amendment establishing binding emissions limitations. Id., at 52926. Congress instead chose to authorize further investigation into climate change. Ibid. (citing §§103(g) and 602(e) of the Clean Air Act Amendments of 1990, 104 Stat. 2652, 2703, 42 U. S. C. §§7403(g)(1) and 7671a(e)). EPA further reasoned that Congress’ “specially tailored solutions to global atmospheric issues,” 68 Fed. Reg. 52926—in particular, its 1990 enactment of a comprehensive scheme to regulate pollutants that depleted the ozone layer, see Title VI, 104 Stat. 2649, 42 U. S. C. §§7671–7671q—counseled against reading the general authorization of §202(a)(1) to confer regulatory authority over greenhouse gases. EPA stated that it was “urged on in this view” by this Court’s decision in FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000). In that case, relying on “tobacco[’s] unique political history,” id., at 159, we invalidated the Food and Drug Administration’s reliance on its general authority to regulate drugs as a basis for asserting jurisdiction over an “industry constituting a significant portion of the American economy,” ibid. EPA reasoned that climate change had its own “political history”: Congress designed the original Clean Air Act to address local air pollutants rather than a substance that “is fairly consistent in its concentration throughout the world’s atmosphere,” 68 Fed. Reg. 52927 (emphasis added); declined in 1990 to enact proposed amendments to force EPA to set carbon dioxide emission standards for motor vehicles, ibid. (citing H. R. 5966, 101st Cong., 2d Sess. (1990)); and addressed global climate change in other legislation, 68 Fed. Reg. 52927. Because of this political history, and because imposing emission limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco, EPA was persuaded that it lacked the power to do so. Id., at 52928. In essence, EPA concluded that climate change was so important that unless Congress spoke with exacting specificity, it could not have meant the agency to address it. Having reached that conclusion, EPA believed it followed that greenhouse gases cannot be “air pollutants” within the meaning of the Act. See ibid. (“It follows from this conclusion, that [greenhouse gases], as such, are not air pollutants under the [Clean Air Act’s] regulatory provisions …”). The agency bolstered this conclusion by explaining that if carbon dioxide were an air pollutant, the only feasible method of reducing tailpipe emissions would be to improve fuel economy. But because Congress has already created detailed mandatory fuel economy standards subject to Department of Transportation (DOT) administration, the agency concluded that EPA regulation would either conflict with those standards or be superfluous. Id., at 52929. Even assuming that it had authority over greenhouse gases, EPA explained in detail why it would refuse to exercise that authority. The agency began by recognizing that the concentration of greenhouse gases has dramatically increased as a result of human activities, and acknowledged the attendant increase in global surface air temperatures. Id., at 52930. EPA nevertheless gave controlling importance to the NRC Report’s statement that a causal link between the two “ ‘cannot be unequivocally established.’ ” Ibid. (quoting NRC Report 17). Given that residual uncertainty, EPA concluded that regulating greenhouse gas emissions would be unwise. 68 Fed. Reg. 52930. The agency furthermore characterized any EPA regulation of motor-vehicle emissions as a “piecemeal approach” to climate change, id., at 52931, and stated that such regulation would conflict with the President’s “comprehensive approach” to the problem, id., at 52932. That approach involves additional support for technological innovation, the creation of nonregulatory programs to encourage voluntary private-sector reductions in greenhouse gas emissions, and further research on climate change—not actual regulation. Id., at 52932–52933. According to EPA, unilateral EPA regulation of motor-vehicle greenhouse gas emissions might also hamper the President’s ability to persuade key developing countries to reduce greenhouse gas emissions. Id., at 52931. III Petitioners, now joined by intervenor States and local governments, sought review of EPA’s order in the United States Court of Appeals for the District of Columbia Circuit.[Footnote 16] Although each of the three judges on the panel wrote a separate opinion, two judges agreed “that the EPA Administrator properly exercised his discretion under §202(a)(1) in denying the petition for rule making.” 415 F. 3d 50, 58 (2005). The court therefore denied the petition for review. In his opinion announcing the court’s judgment, Judge Randolph avoided a definitive ruling as to petitioners’ standing, id., at 56, reasoning that it was permissible to proceed to the merits because the standing and the merits inquiries “overlap[ped],” ibid. Assuming without deciding that the statute authorized the EPA Administrator to regulate greenhouse gas emissions that “in his judgment” may “reasonably be anticipated to endanger public health or welfare,” 42 U. S. C. §7521(a)(1), Judge Randolph concluded that the exercise of that judgment need not be based solely on scientific evidence, but may also be informed by the sort of policy judgments that motivate congressional action. 415 F. 3d, at 58. Given that framework, it was reasonable for EPA to base its decision on scientific uncertainty as well as on other factors, including the concern that unilateral regulation of U. S. motor-vehicle emissions could weaken efforts to reduce greenhouse gas emissions from other countries. Ibid. Judge Sentelle wrote separately because he believed petitioners failed to “demonstrat[e] the element of injury necessary to establish standing under Article III.” Id., at 59 (opinion dissenting in part and concurring in judgment). In his view, they had alleged that global warming is “harmful to humanity at large,” but could not allege “particularized injuries” to themselves. Id., at 60 (citing Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992)). While he dissented on standing, however, he accepted the contrary view as the law of the case and joined Judge Randolph’s judgment on the merits as the closest to that which he preferred. 415 F. 3d, at 60–61. Judge Tatel dissented. Emphasizing that EPA nowhere challenged the factual basis of petitioners’ affidavits, id., at 66, he concluded that at least Massachusetts had “satisfied each element of Article III standing—injury, causation, and redressability,” id., at 64. In Judge Tatel’s view, the “ ‘substantial probability,’ ” id., at 66, that projected rises in sea level would lead to serious loss of coastal property was a “far cry” from the kind of generalized harm insufficient to ground Article III jurisdiction. Id., at 65. He found that petitioners’ affidavits more than adequately supported the conclusion that EPA’s failure to curb greenhouse gas emissions contributed to the sea level changes that threatened Massachusetts’ coastal property. Ibid. As to redressability, he observed that one of petitioners’ experts, a former EPA climatologist, stated that “ ‘[a]chievable reductions in emissions of CO2 and other [greenhouse gases] from U. S. motor vehicles would … delay and moderate many of the adverse impacts of global warming.’ ” Ibid. (quoting declaration of Michael MacCracken, former Executive Director, U. S. Global Change Research Program ¶5(e) (hereinafter MacCracken Decl.), available in 2 Petitioners’ Standing Appendix in No. 03–1361, etc., (CADC), p. 209 (Stdg. App.)). He further noted that the one-time director of EPA’s motor-vehicle pollution control efforts stated in an affidavit that enforceable emission standards would lead to the development of new technologies that “ ‘would gradually be mandated by other countries around the world.’ ” 415 F. 3d, at 66 (quoting declaration of Michael Walsh ¶¶7–8, 10, Stdg. App. 309–310, 311). On the merits, Judge Tatel explained at length why he believed the text of the statute provided EPA with authority to regulate greenhouse gas emissions, and why its policy concerns did not justify its refusal to exercise that authority. 415 F. 3d, at 67–82. IV Article III of the Constitution limits federal-court jurisdiction to “Cases” and “Controversies.” Those two words confine “the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U. S. 83, 95 (1968). It is therefore familiar learning that no justiciable “controversy” exists when parties seek adjudication of a political question, Luther v. Borden, 7 How. 1 (1849), when they ask for an advisory opinion, Hayburn’s Case, 2 Dall. 409 (1792), see also Clinton v. Jones, 520 U. S. 681, 700, n. 33 (1997), or when the question sought to be adjudicated has been mooted by subsequent developments, California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893). This case suffers from none of these defects. The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. See 42 U. S. C. §7607(b)(1). That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Lujan, 504 U. S., at 580 (Kennedy, J., concurring in part and concurring in judgment). “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” Ibid. We will not, therefore, “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.” Id., at 581. EPA maintains that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle. We do not agree. At bottom, “the gist of the question of standing” is whether petitioners 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 for illumination.” Baker v. Carr, 369 U. S. 186, 204 (1962). As Justice Kennedy explained in his Lujan concurrence: “While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that the legal questions presented … 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.” 504 U. S., at 581 (internal quotation marks omitted). To ensure the proper adversarial presentation, Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. See id., at 560–561. However, a litigant to whom Congress has “accorded a procedural right to protect his concrete interests,” id., at 572, n. 7—here, the right to challenge agency action unlawfully withheld, §7607(b)(1)—“can assert that right without meeting all the normal standards for redressability and immediacy,” ibid. When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. Ibid.; see also Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F. 3d 89, 94–95 (CADC 2002) (“A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result”). Only one of the petitioners needs to have standing to permit us to consider the petition for review. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 52, n. 2 (2006). We stress here, as did Judge Tatel below, the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual. Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction. As Justice Holmes explained in Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907), a case in which Georgia sought to protect its citizens from air pollution originating outside its borders: “The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.” Just as Georgia’s “independent interest … in all the earth and air within its domain” supported federal jurisdiction a century ago, so too does Massachusetts’ well-founded desire to preserve its sovereign territory today. Cf. Alden v. Maine, 527 U. S. 706, 715 (1999) (observing that in the federal system, the States “are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty”). That Massachusetts does in fact own a great deal of the “territory alleged to be affected” only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power. When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 607 (1982) (“One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers”). These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U. S. C. §7521(a)(1). Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious. §7607(b)(1). Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.[Footnote 17] With that in mind, it is clear that petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent.” Lujan, 504 U. S., at 560 (internal quotation marks omitted). There is, moreover, a “substantial likelihood that the judicial relief requested” will prompt EPA to take steps to reduce that risk. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 79 (1978). The Injury The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself—which EPA regards as an “objective and independent assessment of the relevant science,” 68 Fed. Reg. 52930—identifies a number of environmental changes that have already inflicted significant harms, including “the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years … .” NRC Report 16. Petitioners allege that this only hints at the environmental damage yet to come. According to the climate scientist Michael MacCracken, “qualified scientific experts involved in climate change research” have reached a “strong consensus” that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century, MacCracken Decl. ¶15, Stdg. App. 207, “severe and irreversible changes to natural ecosystems,” id., ¶5(d), at 209, a “significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences,” ibid., and an increase in the spread of disease, id., ¶28, at 218–219. He also observes that rising ocean temperatures may contribute to the ferocity of hurricanes. Id., ¶¶23–25, at 216–217.[Footnote 18] That these climate-change risks are “widely shared” does not minimize Massachusetts’ interest in the outcome of this litigation. See Federal Election Comm’n v. Akins, 524 U. S. 11, 24 (1998) (“[W]here a harm is concrete, though widely shared, the Court has found ‘injury in fact’ ”). According to petitioners’ unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. MacCracken Decl. ¶5(c), Stdg. App. 208. These rising seas have already begun to swallow Massachusetts’ coastal land. Id., at 196 (declaration of Paul H. Kirshen ¶5), 216 (MacCracken Decl. ¶23). Because the Commonwealth “owns a substantial portion of the state’s coastal property,” id., at 171 (declaration of Karst R. Hoogeboom ¶4),[Footnote 19] it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be “either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.” Id., ¶6, at 172.[Footnote 20] Remediation costs alone, petitioners allege, could run well into the hundreds of millions of dollars. Id., ¶7, at 172; see also Kirshen Decl. ¶12, at 198.[Footnote 21] Causation EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, therefore, EPA’s refusal to regulate such emissions “contributes” to Massachusetts’ injuries. EPA nevertheless maintains that its decision not to regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners’ injuries that the agency cannot be haled into federal court to answer for them. For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease. But EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. See Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 489 (1955) (“[A] reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind”). They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed. Cf. SEC v. Chenery Corp., 332 U. S. 194, 202 (1947) (“Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations”). That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law. And reducing domestic automobile emissions is hardly a tentative step. Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere—according to the MacCracken affidavit, more than 1.7 billion metric tons in 1999 alone. ¶30, Stdg. App. 219. That accounts for more than 6% of worldwide carbon dioxide emissions. Id., at 232 (Oppenheimer Decl. ¶3); see also MacCracken Decl. ¶31, at 220. To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country’s total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China.[Footnote 22] Judged by any standard, U. S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming. The Remedy While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. See also Larson v. Valente, 456 U. S. 228, 244, n. 15 (1982) (“[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury”). Because of the enormity of the potential consequences associated with man-made climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant.[Footnote 23] Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere. We moreover attach considerable significance to EPA’s “agree[ment] with the President that ‘we must address the issue of global climate change,’ ” 68 Fed. Reg. 52929 (quoting remarks announcing Clear Skies and Global Climate Initiatives, 2002 Public Papers of George W. Bush, Vol. 1, Feb. 14, p. 227 (2004)), and to EPA’s ardent support for various voluntary emission-reduction programs, 68 Fed. Reg. 52932. As Judge Tatel observed in dissent below, “EPA would presumably not bother with such efforts if it thought emissions reductions would have no discernable impact on future global warming.” 415 F. 3d, at 66. In sum—at least according to petitioners’ uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing to challenge the EPA’s denial of their rulemaking petition.[Footnote 24] V The scope of our review of the merits of the statutory issues is narrow. As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–845 (1984). That discretion is at its height when the agency decides not to bring an enforcement action. Therefore, in Heckler v. Chaney, 470 U. S. 821 (1985), we held that an agency’s refusal to initiate enforcement proceedings is not ordinarily subject to judicial review. Some debate remains, however, as to the rigor with which we review an agency’s denial of a petition for rulemaking. There are key differences between a denial of a petition for rulemaking and an agency’s decision not to initiate an enforcement action. See American Horse Protection Assn., Inc. v. Lyng, 812 F. 2d 1, 3–4 (CADC 1987). In contrast to nonenforcement decisions, agency refusals to initiate rulemaking “are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation.” Id., at 4; see also 5 U. S. C. §555(e). They moreover arise out of denials of petitions for rulemaking which (at least in the circumstances here) the affected party had an undoubted procedural right to file in the first instance. Refusals to promulgate rules are thus susceptible to judicial review, though such review is “extremely limited” and “highly deferential.” National Customs Brokers & Forwarders Assn of America, Inc. v. United States, 883 F. 2d 93, 96 (CADC 1989). EPA concluded in its denial of the petition for rulemaking that it lacked authority under 42 U. S. C. §7521(a)(1) to regulate new vehicle emissions because carbon dioxide is not an “air pollutant” as that term is defined in §7602. In the alternative, it concluded that even if it possessed authority, it would decline to do so because regulation would conflict with other administration priorities. As discussed earlier, the Clean Air Act expressly permits review of such an action. §7607(b)(1). We therefore “may reverse any such action found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” §7607(d)(9). VI On the merits, the first question is whether §202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a “judgment” that such emissions contribute to climate change. We have little trouble concluding that it does. In relevant part, §202(a)(1) provides that EPA “shall by regulation prescribe … standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U. S. C. §7521(a)(1). Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an “air pollutant” within the meaning of the provision. The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air … .” §7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.”[Footnote 25] Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical … substance[s] which [are] emitted into … the ambient air.” The statute is unambiguous.[Footnote 26] Rather than relying on statutory text, EPA invokes postenactment congressional actions and deliberations it views as tantamount to a congressional command to refrain from regulating greenhouse gas emissions. Even if such postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants. That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant when it amended §202(a)(1) in 1970 and 1977.[Footnote 27] And unlike EPA, we have no difficulty reconciling Congress’ various efforts to promote interagency collaboration and research to better understand climate change[Footnote 28] with the agency’s pre-existing mandate to regulate “any air pollutant” that may endanger the public welfare. See 42 U. S. C. §7601(a)(1). Collaboration and research do not conflict with any thoughtful regulatory effort; they complement it.[Footnote 29] EPA’s reliance on Brown & Williamson Tobacco Corp., 529 U. S. 120, is similarly misplaced. In holding that tobacco products are not “drugs” or “devices” subject to Food and Drug Administration (FDA) regulation pursuant to the Food, Drug and Cosmetic Act (FDCA), see 529 U. S., at 133, we found critical at least two considerations that have no counterpart in this case. First, we thought it unlikely that Congress meant to ban tobacco products, which the FDCA would have required had such products been classified as “drugs” or “devices.” Id., at 135–137. Here, in contrast, EPA jurisdiction would lead to no such extreme measures. EPA would only regulate emissions, and even then, it would have to delay any action “to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance,” §7521(a)(2). However much a ban on tobacco products clashed with the “common sense” intuition that Congress never meant to remove those products from circulation, Brown & Williamson, 529 U. S., at 133, there is nothing counterintuitive to the notion that EPA can curtail the emission of substances that are putting the global climate out of kilter. Second, in Brown & Williamson we pointed to an unbroken series of congressional enactments that made sense only if adopted “against the backdrop of the FDA’s consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco.” Id., at 144. We can point to no such enactments here: EPA has not identified any congressional action that conflicts in any way with the regulation of greenhouse gases from new motor vehicles. Even if it had, Congress could not have acted against a regulatory “backdrop” of disclaimers of regulatory authority. Prior to the order that provoked this litigation, EPA had never disavowed the authority to regulate greenhouse gases, and in 1998 it in fact affirmed that it had such authority. See App. 54 (Cannon memorandum). There is no reason, much less a compelling reason, to accept EPA’s invitation to read ambiguity into a clear statute. EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT. See 68 Fed. Reg. 52929. But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public’s “health” and “welfare,” 42 U. S. C. §7521(a)(1), a statutory obligation wholly independent of DOT’s mandate to promote energy efficiency. See Energy Policy and Conservation Act, §2(5), 89 Stat. 874, 42 U. S. C. §6201(5). The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency. While the Congresses that drafted §202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of §202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth” (internal quotation marks omitted)). Because greenhouse gases fit well within the Clean Air Act’s capacious definition of “air pollutant,” we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles. VII The alternative basis for EPA’s decision—that even if it does have statutory authority to regulate greenhouse gases, it would be unwise to do so at this time—rests on reasoning divorced from the statutory text. While the statute does condition the exercise of EPA’s authority on its formation of a “judgment,” 42 U. S. C. §7521(a)(1), that judgment must relate to whether an air pollutant “cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare,” ibid. Put another way, the use of the word “judgment” is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits. If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles. Ibid. (stating that “[EPA] shall by regulation prescribe … standards applicable to the emission of any air pollutant from any class of new motor vehicles”). EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. But once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. Ibid. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design. EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary executive branch programs already provide an effective response to the threat of global warming, 68 Fed. Reg. 52932, that regulating greenhouse gases might impair the President’s ability to negotiate with “key developing nations” to reduce emissions, id., at 52931, and that curtailing motor-vehicle emissions would reflect “an inefficient, piecemeal approach to address the climate change issue,” ibid. Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a reasoned justification for declining to form a scientific judgment. In particular, while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws. In the Global Climate Protection Act of 1987, Congress authorized the State Department—not EPA—to formulate United States foreign policy with reference to environmental matters relating to climate. See §1103(c), 101 Stat. 1409. EPA has made no showing that it issued the ruling in question here after consultation with the State Department. Congress did direct EPA to consult with other agencies in the formulation of its policies and rules, but the State Department is absent from that list. §1103(b). Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. See 68 Fed. Reg. 52930–52931. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases because of some residual uncertainty—which, contrary to Justice Scalia’s apparent belief, post, at 5–8, is in fact all that it said, see 68 Fed. Reg. 52929 (“We do not believe . . . that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time” (emphasis added))—is irrelevant. The statutory question is whether sufficient information exists to make an endangerment finding. In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, … or otherwise not in accordance with law.” 42 U. S. C. §7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute. VIII 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. Footnote 1 Pet. for Cert. 22. Footnote 2 California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. Footnote 3 District of Columbia, American Samoa, New York City, and Baltimore. Footnote 4 Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U. S. Public Interest Research Group. Footnote 5 Alaska, Idaho, Kansas, Michigan, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah. Footnote 6 Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, CO2 Litigation Group, and Utility Air Regulatory Group. Footnote 7 The 1970 version of §202(a)(1) used the phrase “which endangers the public health or welfare” rather than the more-protective “which may reasonably be anticipated to endanger public health or welfare.” See §6(a) of the Clean Air Amendments of 1970, 84 Stat. 1690. Congress amended §202(a)(1) in 1977 to give its approval to the decision in Ethyl Corp. v. EPA, 541 F. 2d 1, 25 (CADC 1976) (en banc), which held that the Clean Air Act “and common sense … demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.” See §401(d)(1) of the Clean Air Act Amendments of 1977, 91 Stat. 791; see also H. R. Rep. No. 95–294, p. 49 (1977). Footnote 8 The Council on Environmental Quality had issued a report in 1970 concluding that “[m]an may be changing his weather.” Environmental Quality: The First Annual Report 93. Considerable uncertainty remained in those early years, and the issue went largely unmentioned in the congressional debate over the enactment of the Clean Air Act. But see 116 Cong. Rec. 32914 (1970) (statement of Sen. Boggs referring to Council’s conclusion that “[a]ir pollution alters the climate and may produce global changes in temperature”). Footnote 9 See Intergovernmental Panel on Climate Change, Climate Change 2001: Synthesis Report, pp. 202–203 (2001). By drilling through thick Antarctic ice sheets and extracting “cores,” scientists can examine ice from long ago and extract small samples of ancient air. That air can then be analyzed, yielding estimates of carbon dioxide levels. Ibid. Footnote 10 A more dramatic rise was yet to come: In 2006, carbon dioxide levels reached 382 parts per million, see Dept. of Commerce, National Oceanic & Atmospheric Administration, Mauna Loa CO2 Monthly Mean Data, www.esrl.noaa.gov/gmd/ccgg/trends/co2_mm_mlo.dat (all Internet materials as visited Mar. 29, 2007, and available in Clerk of Court’s case file), a level thought to exceed the concentration of carbon dioxide in the atmosphere at any point over the past 20-million years. See Intergovernmental Panel on Climate Change, Technical Summary of Working Group I Report 39 (2001). Footnote 11 Climate Research Board, Carbon Dioxide and Climate: A Scientific Assessment, p. vii (1979). Footnote 12 IPCC, Climate Change: The IPCC Scientific Assessment, p. xi (J. Houghton, G. Jenkins, & J. Ephraums eds. 1991). Footnote 13 The industrialized countries listed in Annex I to the UNFCCC undertook to reduce their emissions of greenhouse gases to 1990 levels by the year 2000. No immediate restrictions were imposed on developing countries, including China and India. They could choose to become Annex I countries when sufficiently developed. Footnote 14 IPCC, Climate Change 1995, The Science of Climate Change, p. 4. Footnote 15 Alliance for Sustainable Communities; Applied Power Technologies, Inc.; Bio Fuels America; The California Solar Energy Industries Assn.; Clements Environmental Corp.; Environmental Advocates; Environmental and Energy Study Institute; Friends of the Earth; Full Circle Energy Project, Inc.; The Green Party of Rhode Island; Greenpeace USA; International Center for Technology Assessment; Network for Environmental and Economic Responsibility of the United Church of Christ; New Jersey Environmental Watch; New Mexico Solar Energy Assn.; Oregon Environmental Council; Public Citizen; Solar Energy Industries Assn.; The SUN DAY Campaign. See App. 7–11. Footnote 16 See 42 U. S. C. §7607(b)(1) (“A petition for review of action of the Administrator in promulgating any … standard under section 7521 of this title … or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia”). Footnote 17 The Chief Justice accuses the Court of misreading Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907), see post, at 3–4 (dissenting opinion), and “devis[ing] a new doctrine of state standing,” id., at 15. But no less an authority than Hart & Wechsler’s The Federal Courts and the Federal System understands Tennessee Copper as a standing decision. R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 290 (5th ed. 2003). Indeed, it devotes an entire section to chronicling the long development of cases permitting States “to litigate as parens patriae to protect quasi-sovereign interests—i.e., public or governmental interests that concern the state as a whole.” Id., at 289; see, e.g., Missouri v. Illinois, 180 U. S. 208, 240–241 (1901) (finding federal jurisdiction appropriate not only “in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a state,” but also when the “substantial impairment of the health and prosperity of the towns and cities of the state” are at stake). Drawing on Massachusetts v. Mellon, 262 U. S. 447 (1923), and Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592 (1982) (citing Missouri v. Illinois, 180 U. S. 208 (1901)), The Chief Justice claims that we “overloo[k] the fact that our cases cast significant doubt on a State’s standing to assert a quasi-sovereign interest … against the Federal Government.” Post, at 5. Not so. Mellon itself disavowed any such broad reading when it noted that the Court had been “called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, [and] not quasi sovereign rights actually invaded or threatened.” 262 U. S., at 484–485 (emphasis added). In any event, we held in Georgia v. Pennsylvania R. Co., 324 U. S. 439, 447 (1945), that there is a critical difference between allowing a State “to protect her citizens from the operation of federal statutes” (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do). Massachusetts does not here dispute that the Clean Air Act applies to its citizens; it rather seeks to assert its rights under the Act. See also Nebraska v. Wyoming, 515 U. S. 1, 20 (1995) (holding that Wyoming had standing to bring a cross-claim against the United States to vindicate its “ ‘quasi-sovereign’ interests which are ‘independent of and behind the titles of its citizens, in all the earth and air within its domain’ ” (quoting Tennessee Copper, 206 U. S., at 237)). Footnote 18 In this regard, MacCracken’s 2004 affidavit—drafted more than a year in advance of Hurricane Katrina—was eerily prescient. Immediately after discussing the “particular concern” that climate change might cause an “increase in the wind speed and peak rate of precipitation of major tropical cyclones (i.e., hurricanes and typhoons),” MacCracken noted that “[s]oil compaction, sea level rise and recurrent storms are destroying approximately 20–30 square miles of Louisiana wetlands each year. These wetlands serve as a ‘shock absorber’ for storm surges that could inundate New Orleans, significantly enhancing the risk to a major urban population.” ¶¶24–25, Stdg. App. 217. Footnote 19 “For example, the [Massachusetts Department of Conservation and Recreation] owns, operates and maintains approximately 53 coastal state parks, beaches, reservations, and wildlife sanctuaries. [It] also owns, operates and maintains sporting and recreational facilities in coastal areas, including numerous pools, skating rinks, playgrounds, playing fields, former coastal fortifications, public stages, museums, bike trails, tennis courts, boathouses and boat ramps and landings. Associated with these coastal properties and facilities is a significant amount of infrastructure, which the Commonwealth also owns, operates and maintains, including roads, parkways, stormwater pump stations, pier[s], sea wal[l] revetments and dams.” Hoogeboom Decl. ¶4, at 171. Footnote 20 See also id., at 179 (declaration of Christian Jacqz) (discussing possible loss of roughly 14 acres of land per miles of coastline by 2100); Kirshen Decl. ¶10, at 198 (alleging that “[w]hen such a rise in sea level occurs, a 10-year flood will have the magnitude of the present 100-year flood and a 100-year flood will have the magnitude of the present 500-year flood”). Footnote 21 In dissent, The Chief Justice dismisses petitioners’ submissions as “conclusory,” presumably because they do not quantify Massachusetts’ land loss with the exactitude he would prefer. Post, at 8. He therefore asserts that the Commonwealth’s injury is “conjectur[al].” See ibid. Yet the likelihood that Massachusetts’ coastline will recede has nothing to do with whether petitioners have determined the precise metes and bounds of their soon-to-be-flooded land. Petitioners maintain that the seas are rising and will continue to rise, and have alleged that such a rise will lead to the loss of Massachusetts’ sovereign territory. No one, save perhaps the dissenters, disputes those allegations. Our cases require nothing more. Footnote 22 See UNFCCC, National Greenhouse Gas Inventory Data for the Period 1990–2004 and Status of Reporting 14 (2006) (hereinafter Inventory Data) (reflecting emissions from Annex I countries); UNFCCC, Sixth Compilation and Synthesis of Initial National Communications from Parties not Included in Annex I to the Convention 7–8 (2005) (reflecting emissions from non-Annex I countries); see also Dept. of Energy, Energy Information Admin., International Energy Annual 2004, H.1co2 World Carbon Dioxide Emissions from the Consumption and Flaring of Fossil Fuels, 1980–2004 (Table), http://www.eia.doe.gov/pub/international/iealf/tableh1co2.xls. Footnote 23 See also Mountain States Legal Foundation v. Glickman, 92 F. 3d 1228, 1234 (CADC 1996) (“The more drastic the injury that government action makes more likely, the lesser the increment in probability to establish standing”); Village of Elk Grove Village v. Evans, 997 F. 2d 328, 329 (CA7 1993) (“[E]ven a small probability of injury is sufficient to create a case or controversy—to take a suit out of the category of the hypothetical—provided of course that the relief sought would, if granted, reduce the probability”). Footnote 24 In his dissent, The Chief Justice expresses disagreement with the Court’s holding in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 687–688 (1973). He does not, however, disavow this portion of Justice Stewart’s opinion for the Court: “Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club [v. Morton, 405 U. S. 727 (1972)], the challenged agency action in this case is applicable to substantially all of the Nation’s railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by major governmental actions. To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.” Ibid. (citations omitted and emphasis added). It is moreover quite wrong to analogize the legal claim advanced by Massachusetts and the other public and private entities who challenge EPA’s parsimonious construction of the Clean Air Act to a mere “lawyer’s game.” See post, at 14. Footnote 25 See Department of Housing and Urban Development v. Rucker, 535 U. S. 125, 131 (2002) (observing that “ ‘any’ … has an expansive meaning, that is, one or some indiscriminately of whatever kind” (some internal quotation marks omitted)). Footnote 26 In dissent, Justice Scalia maintains that because greenhouse gases permeate the world’s atmosphere rather than a limited area near the earth’s surface, EPA’s exclusion of greenhouse gases from the category of air pollution “agent[s]” is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. 467 U. S. 837 (1984). See post, at 11–13. EPA’s distinction, however, finds no support in the text of the statute, which uses the phrase “the ambient air” without distinguishing between atmospheric layers. Moreover, it is a plainly unreasonable reading of a sweeping statutory provision designed to capture “any physical, chemical … substance or matter which is emitted into or otherwise enters the ambient air.” 42 U. S. C. §7602(g). Justice Scalia does not (and cannot) explain why Congress would define “air pollutant” so carefully and so broadly, yet confer on EPA the authority to narrow that definition whenever expedient by asserting that a particular substance is not an “agent.” At any rate, no party to this dispute contests that greenhouse gases both “ente[r] the ambient air” and tend to warm the atmosphere. They are therefore unquestionably “agent[s]” of air pollution. Footnote 27 See United States v. Price, 361 U. S. 304, 313 (1960) (holding that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one”); see also Cobell v. Norton, 428 F. 3d 1070, 1075 (CADC 2005) (“[P]ost-enactment legislative history is not only oxymoronic but inherently entitled to little weight”). Footnote 28 See, e.g., National Climate Program Act, §5, 92 Stat. 601, 15 U. S. C. §2901 et seq. (calling for the establishment of a National Climate Program and for additional climate change research); Global Climate Protection Act of 1987, §1103, 101 Stat. 1408–1409 (directing EPA and the Secretary of State to “jointly” develop a “coordinated national policy on global climate change” and report to Congress); Global Change Research Act of 1990, Tit. I, 104 Stat. 3097, 15 U. S. C. §§2921–2938 (establishing for the “development and coordination of a comprehensive and integrated United States research program” to aid in “understand[ing] … human-induced and natural processes of climate change”); Global Climate Change Prevention Act of 1990, 104 Stat. 4058, 7 U. S. C. §6701 et seq. (directing the Dept. of Agriculture to study the effects of climate change on forestry and agriculture); Energy Policy Act of 1992, §§1601–1609, 106 Stat. 2999, 42 U. S. C. §§13381–13388 (requiring the Secretary of Energy to report on information pertaining to climate change). Footnote 29 We are moreover puzzled by EPA’s roundabout argument that because later Congresses chose to address stratospheric ozone pollution in a specific legislative provision, it somehow follows that greenhouse gases cannot be air pollutants within the meaning of the Clean Air Act.
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549.US.118
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After the parties entered into a patent license agreement covering, inter alia, respondents’ then-pending patent application, the application matured into the “Cabilly II” patent. Respondent Genentech, Inc., sent petitioner a letter stating that Synagis, a drug petitioner manufactured, was covered by the Cabilly II patent and that petitioner owed royalties under the agreement. Although petitioner believed no royalties were due because the patent was invalid and unenforceable and because Synagis did not infringe the patent’s claims, petitioner considered the letter a clear threat to enforce the patent, terminate the license agreement, and bring a patent infringement action if petitioner did not pay. Because such an action could have resulted in petitioner’s being ordered to pay treble damages and attorney’s fees and enjoined from selling Synagis, which accounts for more than 80 percent of its sales revenue, petitioner paid the royalties under protest and filed this action for declaratory and other relief. The District Court dismissed the declaratory-judgment claims for lack of subject-matter jurisdiction because, under Federal Circuit precedent, a patent licensee in good standing cannot establish an Article III case or controversy with regard to the patent’s validity, enforceability, or scope. The Federal Circuit affirmed. Held: 1. Contrary to respondents’ assertion that only a freestanding patent-invalidity claim is at issue, the record establishes that petitioner has raised and preserved the contract claim that, because of patent invalidity, unenforceability, and noninfringement, no royalties are owing. Pp. 3–6. 2. The Federal Circuit erred in affirming the dismissal of this action for lack of subject-matter jurisdiction. The standards for determining whether a particular declaratory-judgment action satisfies the case-or-controversy requirement—i.e., “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant” relief, Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273—are satisfied here even though petitioner did not refuse to make royalty payments under the license agreement. Where threatened government action is concerned, a plaintiff is not required to expose himself to liability before bringing suit to challenge the basis for the threat. His own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction because the threat-eliminating behavior was effectively coerced. Similarly, where the plaintiff’s self-avoidance of imminent injury is coerced by the threatened enforcement action of a private party rather than the government, lower federal and state courts have long accepted jurisdiction. In its only decision in point, this Court held that a licensee’s failure to cease its royalty payments did not render nonjusticiable a dispute over the patent’s validity. Altvater v. Freeman, 319 U. S. 359, 364. Though Altvater involved an injunction, it acknowledged that the licensees had the option of stopping payments in defiance of the injunction, but that the consequence of doing so would be to risk “actual [and] treble damages in infringement suits” by the patentees, a consequence also threatened in this case. Id., at 365. Respondents’ assertion that the parties in effect settled this dispute when they entered into their license agreement is mistaken. Their appeal to the common-law rule that a party to a contract cannot both challenge its validity and continue to reap its benefits is also unpersuasive. Lastly, because it was raised for the first time here, this Court does not decide respondents’ request to affirm the dismissal of the declaratory-judgment claims on discretionary grounds. That question and any merits-based arguments for denial of declaratory relief are left for the lower courts on remand. Pp. 7–18. 427 F. 3d 958, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.
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We must decide whether Article III’s limitation of federal courts’ jurisdiction to “Cases” and “Controversies,” reflected in the “actual controversy” requirement of the Declaratory Judgment Act, 28 U. S. C. §2201(a), requires a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed. I Because the declaratory-judgment claims in this case were disposed of at the motion-to-dismiss stage, we take the following facts from the allegations in petitioner’s amended complaint and the unopposed declarations that petitioner submitted in response to the motion to dismiss. Petitioner MedImmune, Inc., manufactures Synagis, a drug used to prevent respiratory tract disease in infants and young children. In 1997, petitioner entered into a patent license agreement with respondent Genentech, Inc. (which acted on behalf of itself as patent assignee and on behalf of the coassignee, respondent City of Hope). The license covered an existing patent relating to the production of “chimeric antibodies” and a then-pending patent application relating to “the coexpression of immunoglobulin chains in recombinant host cells.” Petitioner agreed to pay royalties on sales of “Licensed Products,” and respondents granted petitioner the right to make, use, and sell them. The agreement defined “Licensed Products” as a specified antibody, “the manufacture, use or sale of which … would, if not licensed under th[e] Agreement, infringe one or more claims of either or both of [the covered patents,] which have neither expired nor been held invalid by a court or other body of competent jurisdiction from which no appeal has been or may be taken.” App. 399. The license agreement gave petitioner the right to terminate upon six months’ written notice. In December 2001, the “coexpression” application covered by the 1997 license agreement matured into the “Cabilly II” patent. Soon thereafter, respondent Genentech delivered petitioner a letter expressing its belief that Synagis was covered by the Cabilly II patent and its expectation that petitioner would pay royalties beginning March 1, 2002. Petitioner did not think royalties were owing, believing that the Cabilly II patent was invalid and unenforceable,[Footnote 1] and that its claims were in any event not infringed by Synagis. Nevertheless, petitioner considered the letter to be a clear threat to enforce the Cabilly II patent, terminate the 1997 license agreement, and sue for patent infringement if petitioner did not make royalty payments as demanded. If respondents were to prevail in a patent infringement action, petitioner could be ordered to pay treble damages and attorney’s fees, and could be enjoined from selling Synagis, a product that has accounted for more than 80 percent of its revenue from sales since 1999. Unwilling to risk such serious consequences, petitioner paid the demanded royalties “under protest and with reservation of all of [its] rights.” Id., at 426. This declaratory-judgment action followed. Petitioner sought the declaratory relief discussed in detail in Part II below. Petitioner also requested damages and an injunction with respect to other federal and state claims not relevant here. The District Court granted respondents’ motion to dismiss the declaratory-judgment claims for lack of subject-matter jurisdiction, relying on the decision of the United States Court of Appeals for the Federal Circuit in Gen-Probe Inc. v. Vysis, Inc., 359 F. 3d 1376 (2004). Gen-Probe had held that a patent licensee in good standing cannot establish an Article III case or controversy with regard to validity, enforceability, or scope of the patent because the license agreement “obliterate[s] any reasonable apprehension” that the licensee will be sued for infringement. Id., at 1381. The Federal Circuit affirmed the District Court, also relying on Gen-Probe. 427 F. 3d 958 (2005). We granted certiorari. 546 U. S. 1169 (2006). II At the outset, we address a disagreement concerning the nature of the dispute at issue here—whether it involves only a freestanding claim of patent invalidity or rather a claim that, both because of patent invalidity and because of noninfringement, no royalties are owing under the license agreement.[Footnote 2] That probably makes no difference to the ultimate issue of subject-matter jurisdiction, but it is well to be clear about the nature of the case before us. Respondents contend that petitioner “is not seeking an interpretation of its present contractual obligations.” Brief for Respondent Genentech 37; see also Brief for Respondent City of Hope 48–49. They claim this for two reasons: (1) because there is no dispute that Synagis infringes the Cabilly II patent, thereby making royalties payable; and (2) because while there is a dispute over patent validity, the contract calls for royalties on an infringing product whether or not the underlying patent is valid. See Brief for Respondent Genentech 7, 37. The first point simply does not comport with the allegations of petitioner’s amended complaint. The very first count requested a “DECLARATORY JUDGMENT ON CONTRACTUAL RIGHTS AND OBLIGATIONS,” and stated that petitioner “disputes its obligation to make payments under the 1997 License Agreement because [petitioner’s] sale of its Synagis® product does not infringe any valid claim of the [Cabilly II] Patent.” App. 136. These contentions were repeated throughout the complaint. Id., at 104, 105, 108, 147.[Footnote 3] And the phrase “does not infringe any valid claim” (emphasis added) cannot be thought to be no more than a challenge to the patent’s validity, since elsewhere the amended complaint states with unmistakable clarity that “the patent is … not infringed by [petitioner’s] Synagis product and that [petitioner] owes no payments under license agreements with [respondents].” Id., at 104.[Footnote 4] As to the second point, petitioner assuredly did contend that it had no obligation under the license to pay royalties on an invalid patent. Id., at 104, 136, 147. Nor is that contention frivolous. True, the license requires petitioner to pay royalties until a patent claim has been held invalid by a competent body, and the Cabilly II patent has not. But the license at issue in Lear, Inc. v. Adkins, 395 U. S. 653, 673 (1969), similarly provided that “royalties are to be paid until such time as the ‘patent … is held invalid,’ ” and we rejected the argument that a repudiating licensee must comply with its contract and pay royalties until its claim is vindicated in court. We express no opinion on whether a nonrepudiating licensee is similarly relieved of its contract obligation during a successful challenge to a patent’s validity—that is, on the applicability of licensee estoppel under these circumstances. Cf. Studiengesellschaft Kohle, M. B. H. v. Shell Oil Co., 112 F. 3d 1561, 1568 (CA Fed. 1997) (“[A] licensee … cannot invoke the protection of the Lear doctrine until it (i) actually ceases payment of royalties, and (ii) provides notice to the licensor that the reason for ceasing payment of royalties is because it has deemed the relevant claims to be invalid”). All we need determine is whether petitioner has alleged a contractual dispute. It has done so. Respondents further argue that petitioner waived its contract claim by failing to argue it below. Brief for Respondent Genentech 10–11; Tr. of Oral Arg. 30–31. The record reveals, however, that petitioner raised the contract point before the Federal Circuit. See Brief for Plantiff-Appellant MedImmune, Inc. in Nos. 04–1300, 04–1384 (CA Fed.), p. 38 (“Here, MedImmune is seeking to define its rights and obligations under its contract with Genentech—precisely the type of action the Declaratory Judgment Act contemplates”). That petitioner limited its contract argument to a few pages of its appellate brief does not suggest a waiver; it merely reflects counsel’s sound assessment that the argument would be futile. The Federal Circuit’s Gen-Probe precedent precluded jurisdiction over petitioner’s contract claims, and the panel below had no authority to overrule Gen-Probe.[Footnote 5] Having determined that petitioner has raised and preserved a contract claim,[Footnote 6] we turn to the jurisdictional question. III The Declaratory Judgment Act provides that, “[i]n a case of actual controversy within its jurisdiction … any court of the United States … may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U. S. C. §2201(a). There was a time when this Court harbored doubts about the compatibility of declaratory-judgment actions with Article III’s case-or-controversy requirement. See Willing v. Chicago Auditorium Assn., 277 U. S. 274, 289 (1928); Liberty Warehouse Co. v. Grannis, 273 U. S. 70 (1927); see also Gordon v. United States, 117 U. S. Appx. 697, 702 (1864) (the last opinion of Taney, C. J., published posthumously) (“The award of execution is … an essential part of every judgment passed by a court exercising judicial power”). We dispelled those doubts, however, in Nashville, C. & St. L. R. Co. v. Wallace, 288 U. S. 249 (1933), holding (in a case involving a declaratory judgment rendered in state court) that an appropriate action for declaratory relief can be a case or controversy under Article III. The federal Declaratory Judgment Act was signed into law the following year, and we upheld its constitutionality in Aetna Life Ins. Co. v. Haworth, 300 U. S. 227 (1937). Our opinion explained that the phrase “case of actual controversy” in the Act refers to the type of “Cases” and “Controversies” that are justiciable under Article III. Id., at 240. Aetna and the cases following it do not draw the brightest of lines between those declaratory-judgment actions that satisfy the case-or-controversy requirement and those that do not. Our decisions have required that the dispute be “definite and concrete, touching the legal relations of parties having adverse legal interests”; and that it be “real and substantial” and “admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Id., at 240–241. In Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941), we summarized as follows: “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”[Footnote 7] There is no dispute that these standards would have been satisfied if petitioner had taken the final step of refusing to make royalty payments under the 1997 license agreement. Respondents claim a right to royalties under the licensing agreement. Petitioner asserts that no royalties are owing because the Cabilly II patent is invalid and not infringed; and alleges (without contradiction) a threat by respondents to enjoin sales if royalties are not forthcoming. The factual and legal dimensions of the dispute are well defined and, but for petitioner’s continuing to make royalty payments, nothing about the dispute would render it unfit for judicial resolution. Assuming (without deciding) that respondents here could not claim an anticipatory breach and repudiate the license, the continuation of royalty payments makes what would otherwise be an imminent threat at least remote, if not nonexistent. As long as those payments are made, there is no risk that respondents will seek to enjoin petitioner’s sales. Petitioner’s own acts, in other words, eliminate the imminent threat of harm.[Footnote 8] The question before us is whether this causes the dispute no longer to be a case or controversy within the meaning of Article III. Our analysis must begin with the recognition that, where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced. The plaintiff’s own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction. For example, in Terrace v. Thompson, 263 U. S. 197 (1923), the State threatened the plaintiff with forfeiture of his farm, fines, and penalties if he entered into a lease with an alien in violation of the State’s anti-alien land law. Given this genuine threat of enforcement, we did not require, as a prerequisite to testing the validity of the law in a suit for injunction, that the plaintiff bet the farm, so to speak, by taking the violative action. Id., at 216. See also, e.g., Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Ex parte Young, 209 U. S. 123 (1908). Likewise, in Steffel v. Thompson, 415 U. S. 452 (1974), we did not require the plaintiff to proceed to distribute handbills and risk actual prosecution before he could seek a declaratory judgment regarding the constitutionality of a state statute prohibiting such distribution. Id., at 458–460. As then-Justice Rehnquist put it in his concurrence, “the declaratory judgment procedure is an alternative to pursuit of the arguably illegal activity.” Id., at 480. In each of these cases, the plaintiff had eliminated the imminent threat of harm by simply not doing what he claimed the right to do (enter into a lease, or distribute handbills at the shopping center). That did not preclude subject-matter jurisdiction because the threat-eliminating behavior was effectively coerced. See Terrace, supra, at 215–216; Steffel, supra, at 459. The dilemma posed by that coercion—putting the challenger to the choice between abandoning his rights or risking prosecution—is “a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.” Abbott Laboratories v. Gardner, 387 U. S. 136, 152 (1967). Supreme Court jurisprudence is more rare regarding application of the Declaratory Judgment Act to situations in which the plaintiff’s self-avoidance of imminent injury is coerced by threatened enforcement action of a private party rather than the government. Lower federal courts, however (and state courts interpreting declaratory judgment Acts requiring “actual controversy”), have long accepted jurisdiction in such cases. See, e.g., Keener Oil & Gas Co. v. Consolidated Gas Utilities Corp., 190 F. 2d 985, 989 (CA10 1951); American Machine & Metals, Inc. v. De Bothezat Impeller Co., 166 F. 2d 535 (CA2 1948); Hess v. Country Club Park, 213 Cal. 613, 614, 2 P. 2d 782, 783 (1931) (in bank); Washington-Detroit Theater Co. v. Moore, 249 Mich. 673, 675, 229 N. W. 618, 618–619 (1930); see also Advisory Committee’s Note on Fed. Rule Civ. Proc. 57.[Footnote 9] The only Supreme Court decision in point is, fortuitously, close on its facts to the case before us. Altvater v. Freeman, 319 U. S. 359 (1943), held that a licensee’s failure to cease its payment of royalties did not render nonjusticiable a dispute over the validity of the patent. In that litigation, several patentees had sued their licensees to enforce territorial restrictions in the license. The licensees filed a counterclaim for declaratory judgment that the underlying patents were invalid, in the meantime paying “under protest” royalties required by an injunction the patentees had obtained in an earlier case. The patentees argued that “so long as [licensees] continue to pay royalties, there is only an academic, not a real controversy, between the parties.” Id., at 364. We rejected that argument and held that the declaratory-judgment claim presented a justiciable case or controversy: “The fact that royalties were being paid did not make this a ‘difference or dispute of a hypothetical or abstract character.’ ” Ibid. (quoting Aetna, 300 U. S., at 240). The royalties “were being paid under protest and under the compulsion of an injunction decree,” and “[u]nless the injunction decree were modified, the only other course [of action] was to defy it, and to risk not only actual but treble damages in infringement suits.” 319 U. S., at 365. We concluded that “the requirements of [a] case or controversy are met where payment of a claim is demanded as of right and where payment is made, but where the involuntary or coercive nature of the exaction preserves the right to recover the sums paid or to challenge the legality of the claim.” Ibid.[Footnote 10] The Federal Circuit’s Gen-Probe decision distinguished Altvater on the ground that it involved the compulsion of an injunction. But Altvater cannot be so readily dismissed. Never mind that the injunction had been privately obtained and was ultimately within the control of the patentees, who could permit its modification. More fundamentally, and contrary to the Federal Circuit’s conclusion, Altvater did not say that the coercion dispositive of the case was governmental, but suggested just the opposite. The opinion acknowledged that the licensees had the option of stopping payments in defiance of the injunction, but explained that the consequence of doing so would be to risk “actual [and] treble damages in infringement suits” by the patentees. 319 U. S., at 365. It significantly did not mention the threat of prosecution for contempt, or any other sort of governmental sanction. Moreover, it cited approvingly a treatise which said that an “actual or threatened serious injury to business or employment” by a private party can be as coercive as other forms of coercion supporting restitution actions at common law; and that “[t]o imperil a man’s livelihood, his business enterprises, or his solvency, [was] ordinarily quite as coercive” as, for example, “detaining his property.” F. Woodward, The Law of Quasi Contracts §218 (1913), cited in Altvater, supra, at 365.[Footnote 11] Jurisdiction over the present case is not contradicted by Willing v. Chicago Auditorium Association, 277 U. S. 274. There a ground lessee wanted to demolish an antiquated auditorium and replace it with a modern commercial building. The lessee believed it had the right to do this without the lessors’ consent, but was unwilling to drop the wrecking ball first and test its belief later. Because there was no declaratory judgment act at the time under federal or applicable state law, the lessee filed an action to remove a “cloud” on its lease. This Court held that an Article III case or controversy had not arisen because “[n]o defendant ha[d] wronged the plaintiff or ha[d] threatened to do so.” Id., at 288, 290. It was true that one of the colessors had disagreed with the lessee’s interpretation of the lease, but that happened in an “informal, friendly, private conversation,” id., at 286, a year before the lawsuit was filed; and the lessee never even bothered to approach the other co-lessors. The Court went on to remark that “[w]hat the plaintiff seeks is simply a declaratory judgment,” and “[t]o grant that relief is beyond the power conferred upon the federal judiciary.” Id., at 289. Had Willing been decided after the enactment (and our upholding) of the Declaratory Judgment Act, and had the legal disagreement between the parties been as lively as this one, we are confident a different result would have obtained. The rule that a plaintiff must destroy a large building, bet the farm, or (as here) risk treble damages and the loss of 80 percent of its business, before seeking a declaration of its actively contested legal rights finds no support in Article III.[Footnote 12] Respondents assert that the parties in effect settled this dispute when they entered into the 1997 license agreement. When a licensee enters such an agreement, they contend, it essentially purchases an insurance policy, immunizing it from suits for infringement so long as it continues to pay royalties and does not challenge the covered patents. Permitting it to challenge the validity of the patent without terminating or breaking the agreement alters the deal, allowing the licensee to continue enjoying its immunity while bringing a suit, the elimination of which was part of the patentee’s quid pro quo. Of course even if it were valid, this argument would have no force with regard to petitioner’s claim that the agreement does not call for royalties because their product does not infringe the patent. But even as to the patent invalidity claim, the point seems to us mistaken. To begin with, it is not clear where the prohibition against challenging the validity of the patents is to be found. It can hardly be implied from the mere promise to pay royalties on patents “which have neither expired nor been held invalid by a court or other body of competent jurisdiction from which no appeal has been or may be taken,” App. 399. Promising to pay royalties on patents that have not been held invalid does not amount to a promise not to seek a holding of their invalidity. Respondents appeal to the common-law rule that a party to a contract cannot at one and the same time challenge its validity and continue to reap its benefits, citing Commodity Credit Corp. v. Rosenberg Bros. & Co., 243 F. 2d 504, 512 (CA9 1957), and Kingman & Co. v. Stoddard, 85 F. 740, 745 (CA7 1898). Lear, they contend, did not suspend that rule for patent licensing agreements, since the plaintiff in that case had already repudiated the contract. Even if Lear’s repudiation of the doctrine of licensee estoppel was so limited (a point on which, as we have said earlier, we do not opine), it is hard to see how the common-law rule has any application here. Petitioner is not repudiating or impugning the contract while continuing to reap its benefits. Rather, it is asserting that the contract, properly interpreted, does not prevent it from challenging the patents, and does not require the payment of royalties because the patents do not cover its products and are invalid. Of course even if respondents were correct that the licensing agreement or the common-law rule precludes this suit, the consequence would be that respondents win this case on the merits—not that the very genuine contract dispute disappears, so that Article III jurisdiction is somehow defeated. In short, Article III jurisdiction has nothing to do with this “insurance-policy” contention. Lastly, respondents urge us to affirm the dismissal of the declaratory-judgment claims on discretionary grounds. The Declaratory Judgment Act provides that a court “may declare the rights and other legal relations of any interested party,” 28 U. S. C. §2201(a) (emphasis added), not that it must do so. This text has long been understood “to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515 U. S. 277, 286 (1995); see also Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U. S. 83, 95, n. 17 (1993); Brillhart v. Excess Ins. Co. of America, 316 U. S. 491, 494–496 (1942). We have found it “more consistent with the statute,” however, “to vest district courts with discretion in the first instance, because facts bearing on the usefulness of the declaratory judgment remedy, and the fitness of the case for resolution, are peculiarly within their grasp.” Wilton, supra, at 289. The District Court here gave no consideration to discretionary dismissal, since, despite its “serious misgivings” about the Federal Circuit’s rule, it considered itself bound to dismiss by Gen-Probe. App. to Pet. for Cert. 31a. Discretionary dismissal was irrelevant to the Federal Circuit for the same reason. Respondents have raised the issue for the first time before this Court, exchanging competing accusations of inequitable conduct with petitioner. See, e.g., Brief for Respondent Genentech 42–44; Reply Brief for Petitioner 17, and n. 15. Under these circumstances, it would be imprudent for us to decide whether the District Court should, or must, decline to issue the requested declaratory relief. We leave the equitable, prudential, and policy arguments in favor of such a discretionary dismissal for the lower courts’ consideration on remand. Similarly available for consideration on remand are any merits-based arguments for denial of declaratory relief. * * * We hold that petitioner was not required, insofar as Article III is concerned, to break or terminate its 1997 license agreement before seeking a declaratory judgment in federal court that the underlying patent is invalid, unenforceable, or not infringed. The Court of Appeals erred in affirming the dismissal of this action for lack of subject-matter jurisdiction. The judgment of the Court of Appeals is reversed, and the cause is remanded for proceedings consistent with this opinion. It is so ordered. Footnote 1 Hereinafter, invalidity and unenforceability will be referred to simply as invalidity, with similar abbreviation of positive (validity and enforceability) and adjectival (valid and invalid, enforceable and unenforceable) forms. Footnote 2 The dissent contends that the question on which we granted certiorari does not reach the contract claim. Post, at 5 (opinion of Thomas, J.). We think otherwise. The question specifically refers to the “license agreement” and to the contention that the patent is “not infringed.” Pet. for Cert. (i). The unmistakable meaning is that royalties are not owing under the contract. Footnote 3 In addition to agreeing with respondents that (despite the face of the complaint) this case does not involve a contract claim, post, at 4–5, the dissent evidently thinks the contract claim is weak. That, however, goes to the merits of the claim, not to its existence or the courts’ jurisdiction over it. Nor is the alleged “lack of specificity in the complaint,” post, at 4, a jurisdictional matter. Footnote 4 The dissent observes that the District Court assumed that Synagis was “ ‘covered by the patents at issue.’ ” Post, at 5 (quoting App. 349–350). But the quoted statement is taken from the District Court’s separate opinion granting summary judgment on petitioner’s antitrust claims. For purposes of that earlier ruling, whether Synagis infringed the patent was irrelevant, and there was no harm in accepting respondents’ contention on the point. This tells us nothing, however, about petitioner’s contract claim or the District Court’s later jurisdictional holding with respect to it. Footnote 5 Respondents obviously agree. They said in the District Court: “The facts of this case are, for purposes of this motion, identical to the facts in Gen-Probe… . Like Gen-Probe, MedImmune filed an action seeking a declaratory judgment that: (a) it owes nothing under its license agreement with Genentech because its sales of Synagis® allegedly do not infringe any valid claim of the [Cabilly II] patent; (b) the [Cabilly II] patent is invalid; (c) the [Cabilly II] patent is unenforceable; and (d) Synagis® does not infringe the [Cabilly II] patent.” App. in Nos. 04–1300, 04–1384 (CA Fed.), p. A2829 (record citations omitted). Footnote 6 The dissent asserts that petitioner did not allege a contract claim in its opening brief or at oral argument. Post, at 5. This is demonstrably false. See, e.g., Brief for Petitioner 8 (the Cabilly II patent was “not infringed by Synagis®, so that royalties were not due under the license”); id., at 12 (Summary of Argument: “[The purpose] of the Declaratory Judgment Act … was to allow contracting parties to resolve their disputes in court without breach and without risking economic destruction and multiplying damages. . . . The holding [below] . . . would … disrupt the law of licenses and contracts throughout the economy, essentially undoing the achievement of the reformers of 1934”); Tr. of Oral Arg. 15 (“We’re saying this is a contract dispute”); id., at 16 (“[T]he purpose of this [the Declaratory Judgment Act] is so that contracts can be resolved without breach”); id., at 57 (“The contract claim is clear in the record. It’s at page 136 of the joint appendix. I don’t think more needs to be said about it”). The dissent also asserts that the validity of the contract claim “hinges entirely upon a determination of the patent’s validity,” since “ ‘the license requires [MedImmune] to pay royalties until a patent claim has been held invalid by a competent body,’ ” post, at 5, quoting infra, at 5. This would be true only if the license required royalties on all products under the sun, and not just those that practice the patent. Of course it does not. Footnote 7 The dissent asserts, post, at 1, that “the declaratory judgment procedure cannot be used to obtain advanced rulings on matters that would be addressed in a future case of actual controversy.” As our preceding discussion shows, that is not so. If the dissent’s point is simply that a defense cannot be raised by means of a declaratory- judgment action where there is no “actual controversy” or where it would be “premature,” phrasing that argument as the dissent has done begs the question: whether this is an actual, ripe controversy. Coffman v. Breeze Corps., 323 U. S. 316, 323–324 (1945), cited post, at 3, does not support the dissent’s view (which is why none of the parties cited it). There, a patent owner sued to enjoin his licensee from paying accrued royalties to the Government under the Royalty Adjustment Act of 1942, and sought to attack the constitutionality of the Act. The Court held the request for declaratory judgment and injunction nonjusticiable because the patent owner asserted no right to recover the royalties and there was no indication that the licensee would even raise the Act as a defense to suit for the royalties. The other case the dissent cites for the point, Calderon v. Ashmus, 523 U. S. 740, 749 (1998), simply holds that a litigant may not use a declaratory-judgment action to obtain piecemeal adjudication of defenses that would not finally and conclusively resolve the underlying controversy. That is, of course, not the case here. Footnote 8 The justiciability problem that arises, when the party seeking declaratory relief is himself preventing the complained-of injury from occurring, can be described in terms of standing (whether plaintiff is threatened with “imminent” injury in fact “ ‘fairly … trace[able] to the challenged action of the defendant,’ ” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)), or in terms of ripeness (whether there is sufficient “hardship to the parties [in] withholding court consideration” until there is enforcement action, Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967)). As respondents acknowledge, standing and ripeness boil down to the same question in this case. Brief for Respondent Genentech 24; Brief for Respondent City of Hope 30–31. Footnote 9 The dissent claims the cited cases do not “rely on the coercion inherent in making contractual payments.” Post, at 9, n. 3. That is true; they relied on (to put the matter as the dissent puts it) the coercion inherent in complying with other claimed contractual obligations. The dissent fails to explain why a contractual obligation of payment is magically different. It obviously is not. In our view, of course, the relevant coercion is not compliance with the claimed contractual obligation, but rather the consequences of failure to do so. Footnote 10 The dissent incorrectly asserts that Altvater required actual infringement, quoting wildly out of context (and twice, for emphasis) Altvater’s statement that “ ‘[t]o hold a patent valid if it is not infringed is to decide a hypothetical case.’ ” Post, at 3, 7 (quoting 319 U. S., at 363). In the passage from which the quotation was plucked, the Altvater Court was distinguishing the Court’s earlier decision in Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241 (1939), which involved an affirmative defense of patent invalidity that had become moot in light of a finding of no infringement. Here is the full quotation: “The District Court [in Electrical Fittings] adjudged a claim of a patent valid although it dismissed the bill for failure to prove infringement. We held that the finding of validity was immaterial to the disposition of the cause and that the winning party might appeal to obtain a reformation of the decree. To hold a patent valid if it is not infringed is to decide a hypothetical case. But the situation in the present case is quite different. We have here not only bill and answer but a counterclaim. Though the decision of non-infringement disposes of the bill and answer, it does not dispose of the counterclaim which raises the question of validity.” Altvater, supra, at 363 (footnote omitted). As the full quotation makes clear, the snippet quoted by the dissent has nothing to do with whether infringement must be actual or merely threatened. Indeed, it makes clear that in appropriate cases to hold a noninfringed patent valid is not to decide a hypothetical case. Though the dissent acknowledges the central lesson of Altvater, post, at 8—that payment of royalties under “coercive” circumstances does not eliminate jurisdiction—it attempts to limit that rationale to the particular facts of Altvater. But none of Altvater’s “unique facts,” post, at 8, suggests that a different test applies to the royalty payments here. Other than a conclusory assertion that the payments here were “voluntarily made,” post, at 10, the dissent never explains why the threat of treble damages and the loss of 80 percent of petitioner’s business does not fall within Altvater’s coercion rationale. Footnote 11 Even if Altvater could be distinguished as an “injunction” case, it would still contradict the Federal Circuit’s “reasonable apprehension of suit” test (or, in its evolved form, the “reasonable apprehension of imminent suit” test, Teva Pharm. USA, Inc. v. Pfizer, Inc., 395 F. 3d 1324, 1333 (2005)). A licensee who pays royalties under compulsion of an injunction has no more apprehension of imminent harm than a licensee who pays royalties for fear of treble damages and an injunction fatal to his business. The reasonable-apprehension-of-suit test also conflicts with our decisions in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941), where jurisdiction obtained even though the collision-victim defendant could not have sued the declaratory-judgment plaintiff-insurer without first obtaining a judgment against the insured; and Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 239 (1937), where jurisdiction obtained even though the very reason the insurer sought declaratory relief was that the insured had given no indication that he would file suit. It is also in tension with Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U. S. 83, 98 (1993), which held that appellate affirmance of a judgment of noninfringement, eliminating any apprehension of suit, does not moot a declaratory judgment counterclaim of patent invalidity. Footnote 12 The dissent objects to our supposed “extension of Steffel [v. Thompson] … to apply to voluntarily accepted contractual obligations between private parties.” Post, at 9. The criticism is misdirected in several respects. The coercion principle upon which we rely today did not originate with Steffel v. Thompson, 415 U. S. 452 (1974), see supra, at 9–10, and we have no opportunity to extend it to private litigation, because Altvater v. Freeman, 319 U. S. 359 (1943) already did so, see supra, at 12. Moreover, even if today’s decision could be described as an “extension of Steffel” to private litigation, the dissent identifies no principled reason why that extension is not appropriate. Article III does not favor litigants challenging threatened government enforcement action over litigants challenging threatened private enforcement action. Indeed, the latter is perhaps the easier category of cases, for it presents none of the difficult issues of federalism and comity with which we wrestled in Steffel. See 415 U. S., at 460–475. The dissent accuses the Court of misapplying Steffel’s rationale. Post, at 10. It contends that Steffel would apply here only if respondents had threatened petitioner with a patent infringement suit in the absence of a license agreement, because only then would petitioner be put to the choice of selling its product or facing suit. Post, at 10. Here, the dissent argues, the license payments are “voluntarily made.” Ibid. If one uses the word “voluntarily” so loosely, it could be applied with equal justification (or lack thereof) to the Steffel plaintiff’s “voluntary” refusal to distribute handbills. We find the threat of treble damages and loss of 80 percent of petitioner’s business every bit as coercive as the modest penalties for misdemeanor trespass threatened in Steffel. Only by ignoring the consequences of the threatened action in this case can the dissent claim that today’s opinion “contains no limiting principle whatsoever,” post, at 10.
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551.US.701
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Respondent school districts voluntarily adopted student assignment plans that rely on race to determine which schools certain children may attend. The Seattle district, which has never operated legally segregated schools or been subject to court-ordered desegregation, classified children as white or nonwhite, and used the racial classifications as a “tiebreaker” to allocate slots in particular high schools. The Jefferson County, Ky., district was subject to a desegregation decree until 2000, when the District Court dissolved the decree after finding that the district had eliminated the vestiges of prior segregation to the greatest extent practicable. In 2001, the district adopted its plan classifying students as black or “other” in order to make certain elementary school assignments and to rule on transfer requests. Petitioners, an organization of Seattle parents (Parents Involved) and the mother of a Jefferson County student (Joshua), whose children were or could be assigned under the foregoing plans, filed these suits contending, inter alia, that allocating children to different public schools based solely on their race violates the Fourteenth Amendment’s equal protection guarantee. In the Seattle case, the District Court granted the school district summary judgment, finding, inter alia, that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit affirmed. In the Jefferson County case, the District Court found that the school district had asserted a compelling interest in maintaining racially diverse schools, and that its plan was, in all relevant respects, narrowly tailored to serve that interest. The Sixth Circuit affirmed. Held: The judgments are reversed, and the cases are remanded. No. 05–908, 426 F. 3d 1162; No. 05–915, 416 F. 3d 513, reversed and remanded. The Chief Justice delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, concluding: 1. The Court has jurisdiction in these cases. Seattle argues that Parents Involved lacks standing because its current members’ claimed injuries are not imminent and are too speculative in that, even if the district maintains its current plan and reinstitutes the racial tiebreaker, those members will only be affected if their children seek to enroll in a high school that is oversubscribed and integration positive. This argument is unavailing; the group’s members have children in all levels of the district’s schools, and the complaint sought declaratory and injunctive relief on behalf of members whose elementary and middle school children may be denied admission to the high schools of their choice in the future. The fact that those children may not be denied such admission based on their race because of undersubscription or oversubscription that benefits them does not eliminate the injury claimed. The group also asserted an interest in not being forced to compete in a race-based system that might prejudice its members’ children, an actionable form of injury under the Equal Protection Clause, see, e.g., Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 211. The fact that Seattle has ceased using the racial tiebreaker pending the outcome here is not dispositive, since the district vigorously defends its program’s constitutionality, and nowhere suggests that it will not resume using race to assign students if it prevails. See Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189. Similarly, the fact that Joshua has been granted a transfer does not eliminate the Court’s jurisdiction; Jefferson County’s racial guidelines apply at all grade levels and he may again be subject to race-based assignment in middle school. Pp. 9–11. 2. The school districts have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme means they have chosen—discriminating among individual students based on race by relying upon racial classifications in making school assignments. Pp. 11–17, 25–28. (a) Because “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,” Fullilove v. Klutznick, 448 U. S. 448, 537 (Stevens, J., dissenting), governmental distributions of burdens or benefits based on individual racial classifications are reviewed under strict scrutiny, e.g., Johnson v. California, 543 U. S. 499, 505–506. Thus, the school districts must demonstrate that their use of such classifications is “narrowly tailored” to achieve a “compelling” government interest. Adarand, supra, at 227. Although remedying the effects of past intentional discrimination is a compelling interest under the strict scrutiny test, see Freeman v. Pitts, 503 U. S. 467, 494, that interest is not involved here because the Seattle schools were never segregated by law nor subject to court-ordered desegregation, and the desegregation decree to which the Jefferson County schools were previously subject has been dissolved. Moreover, these cases are not governed by Grutter v. Bollinger, 539 U. S. 306, 328, in which the Court held that, for strict scrutiny purposes, a government interest in student body diversity “in the context of higher education” is compelling. That interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity,” id., at 337, including, e.g., having “overcome personal adversity and family hardship,” id., at 338. Quoting Justice Powell’s articulation of diversity in Regents of the University of California v. Bakke, 438 U. S. 265, 314–315, the Grutter Court noted that “ ‘it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,’ that can justify the use of race,” 539 U. S., at 324–325, but “ ‘a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element, ’ ” id., at 325. In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” id., at 330; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. See Gratz v. Bollinger, 539 U. S. 244, 275. Even as to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County. The Grutter Court expressly limited its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to the sort of classifications at issue here. Pp. 11–17. (b) Despite the districts’ assertion that they employed individual racial classifications in a way necessary to achieve their stated ends, the minimal effect these classifications have on student assignments suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Similarly, Jefferson County admits that its use of racial classifications has had a minimal effect, and claims only that its guidelines provide a firm definition of the goal of racially integrated schools, thereby providing administrators with authority to collaborate with principals and staff to maintain schools within the desired range. Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of this Court’s precedents and the Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it. In Grutter, in contrast, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school there at issue. See 539 U. S., at 320. While the Court does not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using such classifications. The districts have also failed to show they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” id., at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Pp. 25–28. the Chief Justice, joined by Justice Scalia, Justice Thomas, and Justice Alito, concluded for additional reasons in Parts III–B and IV that the plans at issue are unconstitutional under this Court’s precedents. Pp. 17–25, 28–41. 1. The Court need not resolve the parties’ dispute over whether racial diversity in schools has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits because it is clear that the racial classifications at issue are not narrowly tailored to the asserted goal. In design and operation, the plans are directed only to racial balance, an objective this Court has repeatedly condemned as illegitimate. They are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. Whatever those demographics happen to be drives the required “diversity” number in each district. The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective districts, or rather the districts’ white/nonwhite or black/“other” balance, since that is the only diversity addressed by the plans. In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body, 539 U. S., at 316, 335–336, and the Court concluded that the law school did not count back from its applicant pool to arrive at that number, id., at 335–336. Here, in contrast, the schools worked backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits. This is a fatal flaw under the Court’s existing precedent. See, e.g., Freeman, supra, at 494. Accepting racial balancing as a compelling state interest would justify imposing racial proportionality throughout American society, contrary to the Court’s repeated admonitions that this is unconstitutional. While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration—they offer no definition suggesting that their interest differs from racial balancing. Pp. 17–25. 2. If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. Government action dividing people by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U. S. 630, 657, and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict,” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603 (O’Connor, J., dissenting). When it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U. S. 483, the Court held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because the classification and separation themselves denoted inferiority. Id., at 493–494. It was not the inequality of the facilities but the fact of legally separating children based on race on which the Court relied to find a constitutional violation in that case. Id., at 494. The districts here invoke the ultimate goal of those who filed Brown and subsequent cases to support their argument, but the argument of the plaintiff in Brown was that the Equal Protection Clause “prevents states from according differential treatment to American children on the basis of their color or race,” and that view prevailed—this Court ruled in its remedial opinion that Brown required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown v. Board of Education, 349 U. S. 294, 300–301 (emphasis added). Pp. 28–41. Justice Kennedy agreed that the Court has jurisdiction to decide these cases and that respondents’ student assignment plans are not narrowly tailored to achieve the compelling goal of diversity properly defined, but concluded that some parts of the plurality opinion imply an unyielding insistence that race cannot be a factor in instances when it may be taken into account. Pp. 1–9. (a) As part of its burden of proving that racial classifications are narrowly tailored to further compelling interests, the government must establish, in detail, how decisions based on an individual student’s race are made in a challenged program. The Jefferson County Board of Education fails to meet this threshold mandate when it concedes it denied Joshua’s requested kindergarten transfer on the basis of his race under its guidelines, yet also maintains that the guidelines do not apply to kindergartners. This discrepancy is not some simple and straightforward error that touches only upon the peripheries of the district’s use of individual racial classifications. As becomes clearer when the district’s plan is further considered, Jefferson County has explained how and when it employs these classifications only in terms so broad and imprecise that they cannot withstand strict scrutiny. In its briefing it fails to make clear—even in the limited respects implicated by Joshua’s initial assignment and transfer denial—whether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the government. In the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions based on individual racial classifications, but it has nevertheless failed to explain why, in a district composed of a diversity of races, with only a minority of the students classified as “white,” it has employed the crude racial categories of “white” and “non-white” as the basis for its assignment decisions. Far from being narrowly tailored, this system threatens to defeat its own ends, and the district has provided no convincing explanation for its design. Pp. 2–6. (b) The plurality opinion is too dismissive of government’s legitimate interest in ensuring that all people have equal opportunity regardless of their race. In administering public schools, it is permissible to consider the schools’ racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306. School authorities concerned that their student bodies’ racial compositions interfere with offering an equal educational opportunity to all are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion based solely on a systematic, individual typing by race. Such measures may include strategic site selection of new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. Each respondent has failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts. Cf. Richmond v. J. A. Croson Co., 488 U. S. 469, 501. In these cases, the fact that the number of students whose assignment depends on express racial classifications is small suggests that the schools could have achieved their stated ends through different means, including the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter, though the criteria relevant to student placement would differ based on the students’ age, the parents’ needs, and the schools’ role. Pp. 6–9. Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Parts III–B and IV, in which Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. Together with No. 05–915, Meredith, Custodial Parent and Next Friend of McDonald v. Jefferson County Bd. of Ed et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.
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opinion relying upon the reasoning of the District Court, concluding that a written opinion “would serve no useful purpose.” McFarland v. Jefferson Cty. Public Schools, 416 F. 3d 513, 514 (2005) (McFarland II). We granted certiorari. 547 U. S. __ (2006). II As a threshold matter, we must assure ourselves of our jurisdiction. Seattle argues that Parents Involved lacks standing because none of its current members can claim an imminent injury. Even if the district maintains the current plan and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school and choose an oversubscribed school that is integration positive—too speculative a harm to maintain standing. Brief for Respondents in No. 05–908, pp. 16–17. This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, App. in No. 05–908, at 299a–301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05–908, at 30a. The fact that it is possible that children of group members will not be denied admission to a school based on their race—because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage—does not eliminate the injury claimed. Moreover, Parents Involved also asserted an interest in not being “forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions.” Ibid. As we have held, one form of injury under the Equal Protection Clause is being forced to compete in a race-based system that may prejudice the plaintiff, Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993), an injury that the members of Parents Involved can validly claim on behalf of their children. In challenging standing, Seattle also notes that it has ceased using the racial tiebreaker pending the outcome of this litigation. Brief for Respondents in No. 05–908, at 16–17. But the district vigorously defends the constitutionality of its race-based program, and nowhere suggests that if this litigation is resolved in its favor it will not resume using race to assign students. Voluntary cessation does not moot a case or controversy unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met. Jefferson County does not challenge our jurisdiction, Tr. of Oral Arg. in No. 05–915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). Although apparently Joshua has now been granted a transfer to Bloom, the school to which transfer was denied under the racial guidelines, Tr. of Oral Arg. in No. 05–915, at 45, the racial guidelines apply at all grade levels. Upon Joshua’s enrollment in middle school, he may again be subject to assignment based on his race. In addition, Meredith sought damages in her complaint, which is sufficient to preserve our ability to consider the question. Los Angeles v. Lyons, 461 U. S. 95, 109 (1983). III A It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Johnson v. California, 543 U. S. 499, 505–506 (2005); Grutter v. Bollinger, 539 U. S. 306, 326 (2003); Adarand, supra, at 224. As the Court recently reaffirmed, “ ‘racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’ ” Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (quoting Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting); brackets omitted). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand, supra, at 227. Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. See Freeman v. Pitts, 503 U. S. 467, 494 (1992). Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees. The Jefferson County public schools were previously segregated by law and were subject to a desegregation decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson County had “eliminated the vestiges associated with the former policy of segregation and its pernicious effects,” and thus had achieved “unitary” status. Hampton, 102 F. Supp. 2d, at 360. Jefferson County accordingly does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students. See Tr. of Oral Arg. in No. 05–915, at 38. Nor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that “the Constitution is not violated by racial imbalance in the schools, without more.” Milliken v. Bradley, 433 U. S. 267, 280, n. 14 (1977). See also Freeman, supra, at 495–496; Dowell, 498 U. S., at 248; Milliken v. Bradley, 418 U. S. 717, 746 (1974). Once Jefferson County achieved unitary status, it had remedied the constitutional wrong that allowed race-based assignments. Any continued use of race must be justified on some other basis.[Footnote 10] The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter, 539 U. S., at 328. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” Ibid. The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” Id., at 337. We described the various types of diversity that the law school sought: “[The law school’s] policy makes clear there are many possible bases for diversity admissions, and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.” Id., at 338 (brackets and internal quotation marks omitted). The Court quoted the articulation of diversity from Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U. S. 265 (1978), noting that “it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race.” Grutter, supra, at 324–325 (citing and quoting Bakke, supra, at 314–315 (opinion of Powell, J.); brackets and internal quotation marks omitted). Instead, what was upheld in Grutter was consideration of “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” 539 U. S., at 325 (quoting Bakke, supra, at 315 (opinion of Powell, J.); internal quotation marks omitted). The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review,” 539 U. S., at 337. As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” Ibid. The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.” Id., at 330. In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” ibid.; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz, 539 U. S., at 275, the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way. Id., at 276, 280 (O’Connor, J., concurring). Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County.[Footnote 11] But see Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 610 (1990) (“We are a Nation not of black and white alone, but one teeming with divergent communities knitted together with various traditions and carried forth, above all, by individuals”) (O’Connor, J., dissenting). The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in “[p]roviding students the opportunity to attend schools with diverse student enrollment,” App. in No. 05–908, at 128a, 129a. But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “ ‘broadly diverse,’ ” Grutter, supra, at 329. Prior to Grutter, the courts of appeals rejected as unconstitutional attempts to implement race-based assignment plans—such as the plans at issue here—in primary and secondary schools. See, e.g., Eisenberg v. Montgomery Cty. Public Schools, 197 F. 3d 123, 133 (CA4 1999); Tuttle v. Arlington Cty. School Bd., 195 F. 3d 698, 701 (CA4 1999); Wessman v. Gittens, 160 F. 3d 790, 809 (CA1 1998). See also Ho v. San Francisco Unified School Dist., 147 F. 3d 854, 865 (CA9 1998). After Grutter, however, the two Courts of Appeals in these cases, and one other, found that race-based assignments were permissible at the elementary and secondary level, largely in reliance on that case. See Parents Involved VII, 426 F. 3d, at 1166; McFarland II, 416 F. 3d, at 514; Comfort v. Lynn School Comm., 418 F. 3d 1, 13 (CA1 2005). In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” 539 U. S., at 329. See also Bakke, supra, at 312, 313 (opinion of Powell, J.). The Court explained that “[c]ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” Grutter, supra, at 327, 328, 334. The Court in Grutter expressly articulated key limitations on its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter. B Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Brief for Respondents in No. 05–908, at 19. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment.” App. in No. 05–915, at 22.[Footnote 12] Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contends that because the diversity they seek is racial diversity—not the broader diversity at issue in Grutter—it makes sense to promote that interest directly by relying on race alone. The parties and their amici dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits. The debate is not one we need to resolve, however, because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate. The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. In Seattle, the district seeks white enrollment of between 31 and 51 percent (within 10 percent of “the district white average” of 41 percent), and nonwhite enrollment of between 49 and 69 percent (within 10 percent of “the district minority average” of 59 percent). App. in No. 05–908, at 103a. In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or more than 50 percent, a range designed to be “equally above and below Black student enrollment systemwide,” McFarland I, 330 F. Supp. 2d, at 842, based on the objective of achieving at “all schools … an African-American enrollment equivalent to the average district-wide African-American enrollment” of 34 percent. App. in No. 05–915, at 81. In Seattle, then, the benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at least 50 percent. There must be at least 15 percent nonwhite students under Jefferson County’s plan; in Seattle, more than three times that figure. This comparison makes clear that the racial demographics in each district—whatever they happen to be—drive the required “diversity” numbers. The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and Demographics, to “the goal established by the school board of attain-ing a level of diversity within the schools that approximates the district’s overall demographics.” App. in No. 05–908, at 42a. The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective school districts—or rather the white/nonwhite or black/“other” balance of the districts, since that is the only diversity addressed by the plans. Indeed, in its brief Seattle simply assumes that the educational benefits track the racial breakdown of the district. See Brief for Respondents in No. 05–908, at 36 (“For Seattle, ‘racial balance’ is clearly not an end in itself but rather a measure of the extent to which the educational goals the plan was designed to foster are likely to be achieved”). When asked for “a range of percentage that would be diverse,” however, Seattle’s expert said it was important to have “sufficient numbers so as to avoid students feeling any kind of specter of exceptionality.” App. in No. 05–908, at 276a. The district did not attempt to defend the proposition that anything outside its range posed the “specter of exceptionality.” Nor did it demonstrate in any way how the educational and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent Asian-American, which would qualify as diverse under Seattle’s plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattle’s definition would be racially concentrated. Similarly, Jefferson County’s expert referred to the importance of having “at least 20 percent” minority group representation for the group “to be visible enough to make a difference,” and noted that “small isolated minority groups in a school are not likely to have a strong effect on the overall school.” App. in No. 05–915, at 159, 147. The Jefferson County plan, however, is based on a goal of replicating at each school “an African-American enrollment equivalent to the average district-wide African-American enrollment.” Id., at 81. Joshua McDonald’s requested transfer was denied because his race was listed as “other” rather than black, and allowing the transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the school he sought to leave. Id., at 21. At the time, however, Young Elementary was 46.8 percent black. Id., at 73. The transfer might have had an adverse effect on the effort to approach district-wide racial proportionality at Young, but it had nothing to do with preventing either the black or “other” group from becoming “small” or “isolated” at Young. In fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve the stated goals, even as defined by the districts. For example, at Franklin High School in Seattle, the racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming ninth-grade class in 2000–2001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent Native-American, and 40.5 percent Caucasian. Without the racial tiebreaker, the class would have been 39.6 percent Asian-American, 30.2 percent African-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. See App. in No. 05–908, at 308a. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity.[Footnote 13] In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body. 539 U. S., at 316, 335–336. Although the matter was the subject of disagreement on the Court, see id., at 346–347 (Scalia, J., concurring in part and dissenting in part); id., at 382–383 (Rehnquist, C. J., dissenting); id., at 388–392 (Kennedy, J., dissenting), the majority concluded that the law school did not count back from its applicant pool to arrive at the “meaningful number” it regarded as necessary to diversify its student body. Id., at 335–336. Here the racial balance the districts seek is a defined range set solely by reference to the demographics of the respective school districts. This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Freeman, 503 U. S., at 494. See also Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989); Bakke, 438 U. S., at 307 (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected … as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U. S., at 330. Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U. S., at 602 (O’Connor, J., dissenting); internal quotation marks omitted).[Footnote 14] Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra, at 495 (plurality opinion of O’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 320 (1986) (Stevens, J., dissenting), in turn quoting Fullilove, 448 U. S., at 547 (Stevens, J., dissenting); brackets and citation omitted). An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’Connor, J., dissenting). The validity of our concern that racial balancing has “no logical stopping point,” Croson, supra, at 498 (quoting Wygant, supra, at 275 (plurality opinion); internal quotation marks omitted); see also Grutter, supra, at 343, is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the districts’ demographics shift, so too will their definition of racial diversity. See App. in No. 05–908, at 103a (describing application of racial tiebreaker based on “current white percentage” of 41 percent and “current minority percentage” of 59 percent (emphasis added)). The Ninth Circuit below stated that it “share[d] in the hope” expressed in Grutter that in 25 years racial preferences would no longer be necessary to further the interest identified in that case. Parents Involved VII, 426 F. 3d, at 1192. But in Seattle the plans are defended as necessary to address the consequences of racially identifiable housing patterns. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. See, e.g., Shaw v. Hunt, 517 U. S. 899, 909–910 (1996) (“[A]n effort to alleviate the effects of societal discrimination is not a compelling interest”); Croson, supra, at 498–499; Wygant, 476 U. S., at 276 (plurality opinion) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy”); id., at 288 (O’Connor, J., concurring in part and concurring in judgment) (“[A] governmental agency’s interest in remedying ‘societal’ discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster”). The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration—they offer no definition of the interest that suggests it differs from racial balance. See, e.g., App. in No. 05–908, at 257a (“Q. What’s your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that”); id., at 228a–229a (“I don’t think we’ve ever sat down and said, ‘Define racially concentrated school exactly on point in quantitative terms.’ I don’t think we’ve ever had that conversation”); Tr. in McFarland I, at 1–90 (Dec. 8, 2003) (“Q. How does the Jefferson County School Board define diversity … ?” “A. Well, we want to have the schools that make up the percentage of students of the population”). Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U. S., at 280, n. 14 (“[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is … infirm as a matter of law” (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 24 (1971) (“The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole”), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system. The en banc Ninth Circuit declared that “when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution.” Parents Involved VII, supra, at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled “racial diversity” or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end. C The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Approximately 307 student assignments were affected by the racial tiebreaker in 2000–2001; the district was able to track the enrollment status of 293 of these students. App. in No. 05–908, at 162a. Of these, 209 were assigned to a school that was one of their choices, 87 of whom were assigned to the same school to which they would have been assigned without the racial tiebreaker. Eighty-four students were assigned to schools that they did not list as a choice, but 29 of those students would have been assigned to their respective school without the racial tiebreaker, and 3 were able to attend one of the oversubscribed schools due to waitlist and capacity adjustments. Id., at 162a–163a. In over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned. As the panel majority in Parents Involved VI concluded: “[T]he tiebreaker’s annual effect is thus merely to shuffle a few handfuls of different minority students between a few schools—about a dozen additional Latinos into Ballard, a dozen black students into Nathan Hale, perhaps two dozen Asians into Roosevelt, and so on. The District has not met its burden of proving these marginal changes … outweigh the cost of subjecting hundreds of students to disparate treatment based solely upon the color of their skin.” 377 F. 3d, at 984–985 (footnote omitted). Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students. Elementary school students are assigned to their first- or second-choice school 95 percent of the time, and transfers, which account for roughly 5 percent of assignments, are only denied 35 percent of the time—and presumably an even smaller percentage are denied on the basis of the racial guidelines, given that other factors may lead to a denial. McFarland I, 330 F. Supp. 2d, at 844–845, nn. 16, 18. Jefferson County estimates that the racial guidelines account for only 3 percent of assignments. Brief in Opposition in No. 05–915, p. 7, n. 4; Tr. of Oral Arg. in No. 05–915, at 46. As Jefferson County explains, “the racial guidelines have minimal impact in this process, because they ‘mostly influence student assignment in subtle and indirect ways.’ ” Brief for Respondents in No. 05–915, pp. 8–9. While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school—from 4 to 14.5 percent. See 539 U. S., at 320. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15–50% range.’ ” Brief in Opposition in No. 05–915, at 7 (quoting McFarland I, supra, at 842). Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it. The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” Grutter, supra, at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. See, e.g., App. in No. 05–908, at 224a–225a, 253a–259a, 307a. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Brief for Respondents in No. 05–915, at 8–9. Compare Croson, 488 U. S., at 519 (Kennedy, J., concurring in part and concurring in judgment) (racial classifications permitted only “as a last resort”). IV Justice Breyer’s dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision. To begin with, Justice Breyer seeks to justify the plans at issue under our precedents recognizing the compelling interest in remedying past intentional discrimination. See post, at 18–24. Not even the school districts go this far, and for good reason. The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations. See, e.g., Milliken, 433 U. S., at 280, n. 14; Freeman, 503 U. S., at 495–496 (“Where resegregation is a product not of state action but of private choices, it does not have constitutional implications”). The dissent elides this distinction between de jure and de facto segregation, casually intimates that Seattle’s school attendance patterns reflect illegal segregation, post, at 5, 18, 23,[Footnote 15] and fails to credit the judicial determination—under the most rigorous standard—that Jefferson County had eliminated the vestiges of prior segregation. The dissent thus alters in fundamental ways not only the facts presented here but the established law. Justice Breyer’s reliance on McDaniel v. Barresi, 402 U. S. 39 (1971), post, at 23–24, 29–30, highlights how far removed the discussion in the dissent is from the question actually presented in these cases. McDaniel concerned a Georgia school system that had been segregated by law. There was no doubt that the county had operated a “dual school system,” McDaniel, supra, at 41, and no one questions that the obligation to disestablish a school system segregated by law can include race-conscious remedies—whether or not a court had issued an order to that effect. See supra, at 12. The present cases are before us, however, because the Seattle school district was never segregated by law, and the Jefferson County district has been found to be unitary, having eliminated the vestiges of its prior dual status. The justification for race-conscious remedies in McDaniel is therefore not applicable here. The dissent’s persistent refusal to accept this distinction—its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, “devised to overcome a history of segregated public schools,” post, at 47—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases. Justice Breyer’s dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S., at 16—far more heavily than the school districts themselves. Compare post, at 3, 22–28, with Brief for Respondents in No. 05–908, at 19–20; Brief for Respondents in No. 05–915, at 31. The dissent acknowledges that the two-sentence discussion in Swann was pure dicta, post, at 22, but nonetheless asserts that it demonstrates a “basic principle of constitutional law” that provides “authoritative legal guidance.” Post, at 22, 30. Initially, as the Court explained just last Term, “we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.” Central Va. Community College v. Katz, 546 U. S. 356, 363 (2006). That is particularly true given that, when Swann was decided, this Court had not yet confirmed that strict scrutiny applies to racial classifications like those before us. See n. 16, infra. There is nothing “technical” or “theoretical,” post, at 30, about our approach to such dicta. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 399–400 (1821) (Marshall, C. J.) (explaining why dicta is not binding). Justice Breyer would not only put such extraordinary weight on admitted dicta, but relies on the statement for something it does not remotely say. Swann addresses only a possible state objective; it says nothing of the permissible means—race conscious or otherwise—that a school district might employ to achieve that objective. The reason for this omission is clear enough, since the case did not involve any voluntary means adopted by a school district. The dissent’s characterization of Swann as recognizing that “the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals” is—at best—a dubious inference. Post, at 22. Even if the dicta from Swann were entitled to the weight the dissent would give it, and no dicta is, it not only did not address the question presented in Swann, it also does not address the question presented in these cases—whether the school districts’ use of racial classifications to achieve their stated goals is permissible. Further, for all the lower court cases Justice Breyer cites as evidence of the “prevailing legal assumption” embodied by Swann, very few are pertinent. Most are not. For example, the dissent features Tometz v. Board of Ed., Waukegan City School Dist. No. 61, 39 Ill. 2d 593, 596–598, 237 N. E. 2d 498, 500–502 (1968), an Illinois decision, as evidence that “state and federal courts had considered the matter settled and uncontroversial.” Post, at 25. But Tometz addressed a challenge to a statute requiring race-consciousness in drawing school attendance boundaries—an issue well beyond the scope of the question presented in these cases. Importantly, it considered that issue only under rational-basis review, 39 Ill. 2d, at 600, 237 N. E. 2d, at 502 (“The test of any legislative classification essentially is one of reasonableness”), which even the dissent grudgingly recognizes is an improper standard for evaluating express racial classifications. Other cases cited are similarly inapplicable. See, e.g., Citizens for Better Ed. v. Goose Creek Consol. Independent School Dist., 719 S. W. 2d 350, 352–353 (Tex. App. 1986) (upholding rezoning plan under rational-basis review).[Footnote 16] Justice Breyer’s dissent next looks for authority to a footnote in Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 472, n. 15 (1982), post, at 56–57, but there this Court expressly noted that it was not passing on the propriety of race-conscious student assignments in the absence of a finding of de jure segregation. Similarly, the citation of Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527 (1982), post, at 24, in which a state referendum prohibiting a race-based assignment plan was challenged, is inapposite—in Crawford the Court again expressly reserved the question presented by these cases. 458 U. S., at 535, n. 11. Such reservations and preliminary analyses of course did not decide the merits of this question—as evidenced by the disagreement among the lower courts on this issue. Compare Eisenberg, 197 F. 3d, at 133, with Comfort, 418 F. 3d, at 13. Justice Breyer’s dissent also asserts that these cases are controlled by Grutter, claiming that the existence of a compelling interest in these cases “follows a fortiori” from Grutter, post, at 41, 64–66, and accusing us of tacitly overruling that case, see post, at 64–66. The dissent overreads Grutter, however, in suggesting that it renders pure racial balancing a constitutionally compelling interest; Grutter itself recognized that using race simply to achieve racial balance would be “patently unconstitutional,” 539 U. S., at 330. The Court was exceedingly careful in describing the interest furthered in Grutter as “not an interest in simple ethnic diversity” but rather a “far broader array of qualifications and characteristics” in which race was but a single element. 539 U. S., at 324–325 (internal quotation marks omitted). We take the Grutter Court at its word. We simply do not understand how Justice Breyer can maintain that classifying every schoolchild as black or white, and using that classification as a determinative factor in assigning children to achieve pure racial balance, can be regarded as “less burdensome, and hence more narrowly tailored” than the consideration of race in Grutter, post, at 47, when the Court in Grutter stated that “[t]he importance of … individualized consideration” in the program was “paramount,” and consideration of race was one factor in a “highly individualized, holistic review.” 539 U. S., at 337. Certainly if the constitutionality of the stark use of race in these cases were as established as the dissent would have it, there would have been no need for the extensive analysis undertaken in Grutter. In light of the foregoing, Justice Breyer’s appeal to stare decisis rings particularly hollow. See post, at 65–66. At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, Justice Breyer’s dissent candidly dismisses the significance of this Court’s repeated holdings that all racial classifications must be reviewed under strict scrutiny, see post, at 31–33, 35–36, arguing that a different standard of review should be applied because the districts use race for beneficent rather than malicious purposes, see post, at 31–36. This Court has recently reiterated, however, that “ ‘all racial classifications [imposed by government] … must be analyzed by a reviewing court under strict scrutiny.’ ” Johnson, 543 U. S., at 505 (quoting Adarand, 515 U. S., at 227; emphasis added by Johnson Court). See also Grutter, supra, at 326 (“[G]overnmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry” (internal quotation marks and emphasis omitted)). Justice Breyer nonetheless relies on the good intentions and motives of the school districts, stating that he has found “no case that … repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races.” Post, at 29 (emphasis in original). We have found many. Our cases clearly reject the argument that motives affect the strict scrutiny analysis. See Johnson, supra, at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (rejecting idea that “ ‘benign’ ” racial classifications may be held to “different standard”); Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz, 539 U. S., at 282 (Breyer, J., concurring in judgment); id., at 301 (Ginsburg, J., dissenting); Adarand, supra, at 243 (Stevens, J., dissenting); Wygant, 476 U. S., at 316–317 (Stevens, J., dissenting), and has been repeatedly rejected. See also Bakke, 438 U. S., at 289–291 (opinion of Powell, J.) (rejecting argument that strict scrutiny should be applied only to classifications that disadvantage minorities, stating “[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination”). The reasons for rejecting a motives test for racial classifications are clear enough. “The Court’s emphasis on ‘benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility… . ‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro Broadcasting, 497 U. S., at 609–610 (O’Connor, J., dissenting). See also Adarand, supra, at 226 (“ ‘[I]t may not always be clear that a so-called preference is in fact benign’ ” (quoting Bakke, supra, at 298 (opinion of Powell, J.))). Accepting Justice Breyer’s approach would “do no more than move us from ‘separate but equal’ to ‘unequal but benign.’ ” Metro Broadcasting, supra, at 638 (Kennedy, J., dissenting). Justice Breyer speaks of bringing “the races” together (putting aside the purely black-and-white nature of the plans), as the justification for excluding individuals on the basis of their race. See post, at 28–29. Again, this approach to racial classifications is fundamentally at odds with our precedent, which makes clear that the Equal Protection Clause “protect[s] persons, not groups,” Adarand, 515 U. S., at 227 (emphasis in original). See ibid. (“[A]ll governmental action based on race—a group classification long recognized as ‘in most circumstances irrelevant and therefore prohibited,’ Hirabayashi [v. United States, 320 U. S. 81, 100 (1943)]—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed” (first emphasis in original); Metro Broadcasting, supra, at 636 (“[O]ur Constitution protects each citizen as an individual, not as a member of a group” (Kennedy, J., dissenting)); Bakke, supra, at 289 (opinion of Powell, J.) (Fourteenth Amendment creates rights “guaranteed to the individual. The rights established are personal rights”). This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) (“At stake is the personal interest of the plaintiffs in admission to public schools … on a nondiscriminatory basis” (emphasis added)). For the dissent, in contrast, “ ‘individualized scrutiny’ is simply beside the point.” Post, at 55. Justice Breyer’s position comes down to a familiar claim: The end justifies the means. He admits that “there is a cost in applying ‘a state-mandated racial label,’ ” post, at 67, but he is confident that the cost is worth paying. Our established strict scrutiny test for racial classifications, however, insists on “detailed examination, both as to ends and as to means.” Adarand, supra, at 236 (emphasis added). Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny. Despite his argument that these cases should be evaluated under a “standard of review that is not ‘strict’ in the traditional sense of that word,” post, at 36, Justice Breyer still purports to apply strict scrutiny to these cases. See post, at 37. It is evident, however, that Justice Breyer’s brand of narrow tailoring is quite unlike anything found in our precedents. Without any detailed discussion of the operation of the plans, the students who are affected, or the districts’ failure to consider race-neutral alternatives, the dissent concludes that the districts have shown that these racial classifications are necessary to achieve the districts’ stated goals. This conclusion is divorced from any evaluation of the actual impact of the plans at issue in these cases—other than to note that the plans “often have no effect.” Post, at 46.[Footnote 17] Instead, the dissent suggests that some combination of the development of these plans over time, the difficulty of the endeavor, and the good faith of the districts suffices to demonstrate that these stark and controlling racial classifications are constitutional. The Constitution and our precedents require more. In keeping with his view that strict scrutiny should not apply, Justice Breyer repeatedly urges deference to local school boards on these issues. See, e.g., post, at 21, 48–49, 66. Such deference “is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified.” Johnson, 543 U. S., at 506, n. 1. See Croson, 488 U. S., at 501 (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 637 (1943) (“The Fourteenth Amendment … protects the citizen against the State itself and all of its creatures—Boards of Education not excepted”). Justice Breyer’s dissent ends on an unjustified note of alarm. It predicts that today’s decision “threaten[s]” the validity of “[h]undreds of state and federal statutes and regulations.” Post, at 61; see also post, at 27–28. But the examples the dissent mentions—for example, a provision of the No Child Left Behind Act that requires States to set measurable objectives to track the achievement of students from major racial and ethnic groups, 20 U. S. C. §6311(b)(2)(C)(v)—have nothing to do with the pertinent issues in these cases. Justice Breyer also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. Post, at 58–62. These other means—e.g., where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools—implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity—not even in dicta. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissent’s cataclysmic concerns. Under that approach, the school districts have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosen—classifying individual students on the basis of their race and discriminating among them on that basis. * * * If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. “[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand, 515 U. S., at 214 (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U. S. 630, 657 (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Metro Broadcasting, 497 U. S., at 603 (O’Connor, J., dissenting). As the Court explained in Rice v. Cayetano, 528 U. S. 495, 517 (2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” All this is true enough in the contexts in which these statements were made—government contracting, voting districts, allocation of broadcast licenses, and electing state officers—but when it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. Id., at 493–494. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. See id., at 494 (“ ‘The impact [of segregation] is greater when it has the sanction of the law’ ”). The next Term, we accordingly stated that “full compliance” with Brown I required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown II, 349 U. S., at 300–301 (emphasis added). The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O. T. 1953, p. 15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis? Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U. S., at 300–301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. The judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are remanded for further proceedings. It is so ordered. Footnote 1 The plan was in effect from 1999–2002, for three school years. This litigation was commenced in July 2000, and the record in the District Court was closed before assignments for the 2001–2002 school year were made. See Brief for Respondents in No. 05–908, p. 9, n. 9. We rely, as did the lower courts, largely on data from the 2000–2001 school year in evaluating the plan. See 426 F. 3d 1162, 1169–1171 (CA9 2005) (en banc) (Parents Involved VII). Footnote 2 The racial breakdown of this nonwhite group is approximately 23.8 percent Asian-American, 23.1 percent African-American, 10.3 percent Latino, and 2.8 percent Native-American. See 377 F. 3d 949, 1005–1006 (CA9 2004) (Parents Involved VI) (Graber, J., dissenting). Footnote 3 For the 2001–2002 school year, the deviation permitted from the desired racial composition was increased from 10 to 15 percent. App. in No. 05–908, p. 38a. The bulk of the data in the record was collected using the 10 percent band, see n. 1, supra. Footnote 4 “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Amdt. 14, §1. Footnote 5 “No person in the United States shall, on the ground of race … be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 78 Stat. 252, 42 U. S. C. §2000d. Footnote 6 “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Wash. Rev. Code §49.60.400(1) (2006). Footnote 7 Middle and high school students are designated a single resides school and assigned to that school unless it is at the extremes of the racial guidelines. Students may also apply to a magnet school or program, or, at the high school level, take advantage of an open enrollment plan that allows ninth-grade students to apply for admission to any nonmagnet high school. App. in No. 05–915, pp. 39–41, 82–83. Footnote 8 It is not clear why the racial guidelines were even applied to Joshua’s transfer application—the guidelines supposedly do not apply at the kindergarten level. Id., at 43. Neither party disputes, however, that Joshua’s transfer application was denied under the racial guidelines, and Meredith’s objection is not that the guidelines were misapplied but rather that race was used at all. Footnote 9 Meredith joined a pending lawsuit filed by several other plaintiffs. See id., at 7–11. The other plaintiffs all challenged assignments to certain specialized schools, and the District Court found these assignments, which are no longer at issue in this case, unconstitutional. McFarland I, 330 F. Supp. 2d 834, 837, 864 (WD Ky. 2004). Footnote 10 The districts point to dicta in a prior opinion in which the Court suggested that, while not constitutionally mandated, it would be constitutionally permissible for a school district to seek racially balanced schools as a matter of “educational policy.” See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971). The districts also quote with approval an in-chambers opinion in which then-Justice Rehnquist made a suggestion to the same effect. See Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978). The citations do not carry the significance the districts would ascribe to them. Swann, evaluating a school district engaged in court-ordered desegregation, had no occasion to consider whether a district’s voluntary adoption of race-based assignments in the absence of a finding of prior de jure segregation was constitutionally permissible, an issue that was again expressly reserved in Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 472, n. 15 (1982). Bustop, addressing in the context of an emergency injunction application a busing plan imposed by the Superior Court of Los Angeles County, is similarly unavailing. Then-Justice Rehnquist, in denying emergency relief, stressed that “equitable consideration[s]” counseled against preliminary relief. 439 U. S., at 1383. The propriety of preliminary relief and resolution of the merits are of course “significantly different” issues. University of Texas v. Camenisch, 451 U. S. 390, 393 (1981). Footnote 11 The way Seattle classifies its students bears this out. Upon enrolling their child with the district, parents are required to identify their child as a member of a particular racial group. If a parent identifies more than one race on the form, “[t]he application will not be accepted and, if necessary, the enrollment service person taking the application will indicate one box.” App. in No. 05–908, at 303a. Footnote 12 Jefferson County also argues that it would be incongruous to hold that what was constitutionally required of it one day—race-based assignments pursuant to the desegregation decree—can be constitutionally prohibited the next. But what was constitutionally required of the district prior to 2000 was the elimination of the vestiges of prior segregation—not racial proportionality in its own right. See Freeman v. Pitts, 503 U. S. 467, 494–496 (1992). Once those vestiges were eliminated, Jefferson County was on the same footing as any other school district, and its use of race must be justified on other grounds. Footnote 13 Data for the Seattle schools in the several years since this litigation was commenced further demonstrate the minimal role that the racial tiebreaker in fact played. At Ballard, in 2005–2006—when no class at the school was subject to the racial tiebreaker—the student body was 14.2 percent Asian-American, 9 percent African-American, 11.7 percent Latino, 62.3 percent Caucasian, and 2.8 percent Native-American. Reply Brief for Petitioner in No. 05–908, p. 7. In 2000–2001, when the racial tiebreaker was last used, Ballard’s total enrollment was 17.5 percent Asian-American, 10.8 percent African-American, 10.7 percent Latino, 56.4 percent Caucasian, and 4.6 percent Native-American. App. in No. 05–908, at 283a. Franklin in 2005–2006 was 48.9 percent Asian-American, 33.5 percent African-American, 6.6 percent Latino, 10.2 percent Caucasian, and 0.8 percent Native-American. Reply Brief for Petitioner in No. 05–908, at 7. With the racial tiebreaker in 2000–2001, total enrollment was 36.8 percent Asian-American, 32.2 percent African-American, 5.2 percent Latino, 25.1 percent Caucasian, and 0.7 percent Native-American. App. in No. 05–908, at 284a. Nathan Hale’s 2005–2006 enrollment was 17.3 percent Asian-American, 10.7 percent African-American, 8 percent Latino, 61.5 percent Caucasian, and 2.5 percent Native-American. Reply Brief for Petitioner in No. 05–908, at 7. In 2000–2001, with the racial tiebreaker, it was 17.9 percent Asian-American, 13.3 percent African-American, 7 percent Latino, 58.4 percent Caucasian, and 3.4 percent Native-American. App. in No. 05–908, at 286a. Footnote 14 In contrast, Seattle’s website formerly described “emphasizing individualism as opposed to a more collective ideology” as a form of “cultural racism,” and currently states that the district has no intention “to hold onto unsuccessful concepts such as [a] … colorblind mentality.” Harrell, School Web Site Removed: Examples of Racism Sparked Controversy, Seattle Post-Intelligencer, June 2, 2006, pp. B1, B5. Compare Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting) (“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law”). Footnote 15 Justice Breyer makes much of the fact that in 1978 Seattle “settled” an NAACP complaint alleging illegal segregation with the federal Office for Civil Rights (OCR). See post, at 5, 8–9, 18, 23. The memorandum of agreement between Seattle and OCR, of course, contains no admission by Seattle that such segregation ever existed or was ongoing at the time of the agreement, and simply reflects a “desire to avoid the incovenience [sic] and expense of a formal OCR investigation,” which OCR was obligated under law to initiate upon the filing of such a complaint. Memorandum of Agreement between Seattle School District No. 1 of King County, Washington, and the Office for Civil Rights, United States Department of Health, Education, and Welfare 2 (June 9, 1978); see also 45 CFR §80.7(c) (2006). Footnote 16 In fact, all the cases Justice Breyer’s dissent cites as evidence of the “prevailing legal assumption,” see post, at 25–27, were decided before this Court definitively determined that “all racial classifications … must be analyzed by a reviewing court under strict scrutiny.” Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 227 (1995). Many proceeded under the now-rejected view that classifications seeking to benefit a disadvantaged racial group should be held to a lesser standard of review. See, e.g., Springfield School Comm. v. Barksdale, 348 F. 2d 261, 266 (CA1 1965). Even if this purported distinction, which Justice Stevens would adopt, post, at 2, n. 3 (dissenting opinion), had not been already rejected by this Court, the distinction has no relevance to these cases, in which students of all races are excluded from the schools they wish to attend based solely on the racial classifications. See, e.g., App. in No. 05–908, at 202a (noting that 89 nonwhite students were denied assignment to a particular school by operation of Seattle’s racial tiebreaker). Justice Stevens’s reliance on School Comm. of Boston v. Board of Ed., 352 Mass. 693, 227 N. E. 2d 729 (1967), appeal dism’d, 389 U. S. 572 (1968) (per curiam), post, at 3–5, is inapposite for the same reason that many of the cases cited by Justice Breyer are inapposite; the case involved a Massachusetts law that required school districts to avoid racial imbalance in schools but did not specify how to achieve this goal—and certainly did not require express racial classifications as the means to do so. The law was upheld under rational-basis review, with the state court explicitly rejecting the suggestion—which is now plainly the law—that “racial group classifications bear a far heavier burden of justification.” 352 Mass., at 700, 227 N. E. 2d, at 734 (internal quotation marks and citation omitted). The passage Justice Stevens quotes proves our point; all the quoted language says is that the school committee “shall prepare a plan to eliminate the imbalance.” Id., at 695, 227 N. E. 2d, at 731; see post, at 4, n. 5. Nothing in the opinion approves use of racial classifications as the means to address the imbalance. The suggestion that our decision today is somehow inconsistent with our disposition of that appeal is belied by the fact that neither the lower courts, the respondent school districts, nor any of their 51 amici saw fit even to cite the case. We raise this fact not to argue that the dismissal should be afforded any different stare decisis effect, but rather simply to suggest that perhaps—for the reasons noted above—the dismissal does not mean what Justice Stevens believes it does. Footnote 17 Justice Breyer also tries to downplay the impact of the racial assignments by stating that in Seattle “students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria).” Post, at 46. This presumably refers to the district’s decision to cease, for 2001–2002 school year assignments, applying the racial tiebreaker to students seeking to transfer to a different school after ninth grade. See App. in No. 05–908, at 137a–139a. There are obvious disincentives for students to transfer to a different school after a full quarter of their high school experience has passed, and the record sheds no light on how transfers to the oversubscribed high schools are handled.
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550.US.437
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It is the general rule under United States patent law that no infringement occurs when a patented product is made and sold in another country. There is an exception. Section 271(f) of the Patent Act, adopted in 1984, provides that infringement does occur when one “suppl[ies] … from the United States,” for “combination” abroad, a patented invention’s “components.” 35 U. S. C. §271(f)(1). This case concerns the applicability of §271(f) to computer software first sent from the United States to a foreign manufacturer on a master disk, or by electronic transmission, then copied by the foreign recipient for installation on computers made and sold abroad. AT&T holds a patent on a computer used to digitally encode and compress recorded speech. Microsoft’s Windows operating system has the potential to infringe that patent because Windows incorporates software code that, when installed, enables a computer to process speech in the manner claimed by the patent. Microsoft sells Windows to foreign manufacturers who install the software onto the computers they sell. Microsoft sends each manufacturer a master version of Windows, either on a disk or via encrypted electronic transmission, which the manufacturer uses to generate copies. Those copies, not the master version sent by Microsoft, are installed on the foreign manufacturer’s computers. The foreign-made computers are then sold to users abroad. AT&T filed an infringement suit charging Microsoft with liability for the foreign installations of Windows. By sending Windows to foreign manufacturers, AT&T contended, Microsoft “supplie[d] … from the United States,” for “combination” abroad, “components” of AT&T’s patented speech-processing computer, and, accordingly, was liable under §271(f). Microsoft responded that unincorporated software, because it is intangible information, cannot be typed a “component” of an invention under §271(f). Microsoft also urged that the foreign-generated copies of Windows actually installed abroad were not “supplie[d] … from the United States.” Rejecting these responses, the District Court held Microsoft liable under §271(f), and a divided Federal Circuit panel affirmed. Held: Because Microsoft does not export from the United States the copies of Windows installed on the foreign-made computers in question, Microsoft does not “suppl[y] … from the United States” “components” of those computers, and therefore is not liable under §271(f) as currently written. Pp. 7–19. (a) A copy of Windows, not Windows in the abstract, qualifies as a “component” under §271(f). Section 271(f) attaches liability to the supply abroad of the “components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components.” §271(f)(1) (emphasis added). The provision thus applies only to “such components” as are combined to form the “patented invention” at issue—here, AT&T’s speech-processing computer. Until expressed as a computer-readable “copy,” e.g., on a CD-ROM, Windows—indeed any software detached from an activating medium—remains uncombinable. It cannot be inserted into a CD-ROM drive or downloaded from the Internet; it cannot be installed or executed on a computer. Abstract software code is an idea without physical embodiment, and as such, it does not match §271(f)’s categorization: “components” amenable to “combination.” Windows abstracted from a tangible copy no doubt is information—a detailed set of instructions—and thus might be compared to a blueprint (or anything else containing design information). A blueprint may contain precise instructions for the construction and combination of the components of a patented device, but it is not itself a combinable component. The fact that it is easy to encode software’s instructions onto a computer-readable medium does not counsel a different answer. The copy-producing step is what renders software a usable, combinable part of a computer; easy or not, the extra step is essential. Moreover, many tools may be used easily and inexpensively to generate the parts of a device. Those tools are not, however, “components” of the devices in which the parts are incorporated, at least not under any ordinary understanding of the term “component.” Congress might have included within §271(f)’s compass, for example, not only a patented invention’s combinable “components,” but also “information, instructions, or tools from which those components readily may be generated.” It did not. Pp. 9–12. (b) Microsoft did not “suppl[y] … from the United States” the foreign-made copies of Windows installed on the computers here involved. Under a conventional reading of §271(f)’s text, those copies were “supplie[d]” from outside the United States. The Federal Circuit majority concluded, however, that for software components, the act of copying is subsumed in the act of supplying. A master sent abroad, the majority observed, differs not at all from exact copies, generated easily, inexpensively, and swiftly from the master. Hence, sending a single copy of software abroad with the intent that it be replicated invokes §271(f) liability for the foreign-made copies. Judge Rader, dissenting, noted that “supplying” is ordinarily understood to mean an activity separate and distinct from any subsequent “copying,” “replicating,” or “reproducing”—in effect, manufacturing. He further observed that the only true difference between software components and physical components of other patented inventions is that copies of software are easier to make and transport. But nothing in §271(f)’s text, Judge Rader maintained, renders ease of copying a relevant, no less decisive, factor in triggering liability for infringement. The Court agrees. Under §271(f)’s text, the very components supplied from the United States, and not foreign-made copies thereof, trigger liability when combined abroad to form the patented invention at issue. While copying software abroad is indeed easy and inexpensive, the same can be said of other items, such as keys copied from a master. Section 271(f) contains no instruction to gauge when duplication is easy and cheap enough to deem a copy in fact made abroad nevertheless “supplie[d] … from the United States.” The absence of anything addressing copying in the statutory text weighs against a judicial determination that replication abroad of a master dispatched from the United States “supplies” the foreign-made copies from this country. Pp. 12–14. (c) Any doubt that Microsoft’s conduct falls outside §271(f)’s compass would be resolved by the presumption against extraterritoriality. Foreign conduct is generally the domain of foreign law, and in the patent area, that law may embody different policy judgments about the relative rights of inventors, competitors, and the public. Applied here, the presumption tugs strongly against construing §271(f) to encompass as a “component” not only a physical copy of software, but also software’s intangible code, and to render “supplie[d] … from the United States” not only exported copies of software, but also duplicates made abroad. Foreign law alone, not United States law, currently governs the manufacture and sale of components of patented inventions in foreign countries. If AT&T desires to prevent copying abroad, its remedy lies in obtaining and enforcing foreign patents. Pp. 14–16. (d) While reading §271(f) to exclude from coverage foreign-made copies of software may create a “loophole” in favor of software makers, the Court is not persuaded that dynamic judicial interpretation of §271(f) is in order; the “loophole” is properly left for Congress to consider, and to close if it finds such action warranted. Section 271(f) was a direct response to a gap in U. S. patent law revealed by Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, where the items exported were kits containing all the physical, readily assemblable parts of a machine (not an intangible set of instructions), and those parts themselves (not foreign-made copies of them) would be combined abroad by foreign buyers. Having attended to that gap, Congress did not address other arguable gaps, such as the loophole AT&T describes. Given the expanded extraterritorial thrust AT&T’s reading of §271(f) entails, the patent-protective determination AT&T seeks must be left to Congress. Cf. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 431. Congress is doubtless aware of the ease with which electronic media such as software can be copied, and has not left the matter untouched. See the Digital Millennium Copyright Act, 17 U. S. C. §1201 et seq. If patent law is to be adjusted better to account for the realities of software distribution, the alteration should be made after focused legislative consideration, not by the Judiciary forecasting Congress’ likely disposition. Pp. 17–19. 414 F. 3d 1366, reversed. Ginsburg, J., delivered the opinion of the Court, except as to footnote 14. Scalia, Kennedy, and Souter, JJ., joined that opinion in full. Alito, J., filed an opinion concurring as to all but footnote 14, in which Thomas and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion. Roberts, C. J., took no part in the consideration or decision of the case.
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except as to footnote 14. It is the general rule under United States patent law that no infringement occurs when a patented product is made and sold in another country. There is an exception. Section 271(f) of the Patent Act, adopted in 1984, provides that infringement does occur when one “supplies . . . from the United States,” for “combination” abroad, a patented invention’s “components.” 35 U. S. C. §271(f)(1). This case concerns the applicability of §271(f) to computer software first sent from the United States to a foreign manufacturer on a master disk, or by electronic transmission, then copied by the foreign recipient for installation on computers made and sold abroad. AT&T holds a patent on an apparatus for digitally encoding and compressing recorded speech. Microsoft’s Windows operating system, it is conceded, has the potential to infringe AT&T’s patent, because Windows incorporates software code that, when installed, enables a computer to process speech in the manner claimed by that patent. It bears emphasis, however, that uninstalled Windows software does not infringe AT&T’s patent any more than a computer standing alone does; instead, the patent is infringed only when a computer is loaded with Windows and is thereby rendered capable of performing as the patented speech processor. The question before us: Does Microsoft’s liability extend to computers made in another country when loaded with Windows software copied abroad from a master disk or electronic transmission dispatched by Microsoft from the United States? Our answer is “No.” The master disk or electronic transmission Microsoft sends from the United States is never installed on any of the foreign-made computers in question. Instead, copies made abroad are used for installation. Because Microsoft does not export from the United States the copies actually installed, it does not “suppl[y] … from the United States” “components” of the relevant computers, and therefore is not liable under §271(f) as currently written. Plausible arguments can be made for and against extending §271(f) to the conduct charged in this case as infringing AT&T’s patent. Recognizing that §271(f) is an exception to the general rule that our patent law does not apply extraterritorially, we resist giving the language in which Congress cast §271(f) an expansive interpretation. Our decision leaves to Congress’ informed judgment any adjustment of §271(f) it deems necessary or proper. I Our decision some 35 years ago in Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518 (1972), a case about a shrimp deveining machine, led Congress to enact §271(f). In that case, Laitram, holder of a patent on the time-and-expense-saving machine, sued Deepsouth, manufacturer of an infringing deveiner. Deepsouth conceded that the Patent Act barred it from making and selling its deveining machine in the United States, but sought to salvage a portion of its business: Nothing in United States patent law, Deepsouth urged, stopped it from making in the United States the parts of its deveiner, as opposed to the machine itself, and selling those parts to foreign buyers for assembly and use abroad. Id., at 522–524.[Footnote 1] We agreed. Interpreting our patent law as then written, we reiterated in Deepsouth that it was “not an infringement to make or use a patented product outside of the United States.” Id., at 527; see 35 U. S. C. §271(a) (1970 ed.) (“[W]hoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.”). Deepsouth’s foreign buyers did not infringe Laitram’s patent, we held, because they assembled and used the deveining machines outside the United States. Deepsouth, we therefore concluded, could not be charged with inducing or contributing to an infringement. 406 U. S., at 526–527.[Footnote 2] Nor could Deepsouth be held liable as a direct infringer, for it did not make, sell, or use the patented invention—the fully assembled deveining machine—within the United States. The parts of the machine were not themselves patented, we noted, hence export of those parts, unassembled, did not rank as an infringement of Laitram’s patent. Id., at 527–529. Laitram had argued in Deepsouth that resistance to extension of the patent privilege to cover exported parts “derived from too narrow and technical an interpretation of the [Patent Act].” Id., at 529. Rejecting that argument, we referred to prior decisions holding that “a combination patent protects only against the operable assembly of the whole and not the manufacture of its parts.” Id., at 528. Congress’ codification of patent law, we said, signaled no intention to broaden the scope of the privilege. Id., at 530 (“When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.”). And we again emphasized that “[o]ur patent system makes no claim to extraterritorial effect; these acts of Congress do not, and were not intended to, operate beyond the limits of the United States; and we correspondingly reject the claims of others to such control over our markets.” Id., at 531 (quoting Brown v. Duchesne, 19 How. 183, 195 (1857)). Absent “a clear congressional indication of intent,” we stated, courts had no warrant to stop the manufacture and sale of the parts of patented inventions for assembly and use abroad. 406 U. S., at 532. Focusing its attention on Deepsouth, Congress enacted §271(f). See Patent Law Amendments Act of 1984, §101, 98 Stat. 3383; Fisch & Allen, The Application of Domestic Patent Law to Exported Software: 35 U. S. C. §271(f), 25 U. Pa. J. Int’l Econ. L. 557, 565 (2004) (“Congress specifically intended §271(f) as a response to the Supreme Court’s decision in Deepsouth”).[Footnote 3] The provision expands the definition of infringement to include supplying from the United States a patented invention’s components: “(1) Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer. “(2) Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial noninfringing use, where such component is uncombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” 35 U. S. C. §271(f). II Windows is designed, authored, and tested at Microsoft’s Redmond, Washington, headquarters. Microsoft sells Windows to end users and computer manufacturers, both foreign and domestic. Purchasing manufacturers install the software onto the computers they sell. Microsoft sends to each of the foreign manufacturers a master version of Windows, either on a disk or via encrypted electronic transmission. The manufacturer uses the master version to generate copies. Those copies, not the master sent by Microsoft, are installed on the foreign manufacturer’s computers. Once assembly is complete, the foreign-made computers are sold to users abroad. App. to Pet. for Cert. 45a–46a.[Footnote 4] AT&T’s patent (’580 patent) is for an apparatus (as relevant here, a computer) capable of digitally encoding and compressing recorded speech. Windows, the parties agree, contains software that enables a computer to process speech in the manner claimed by the ’580 patent. In 2001, AT&T filed an infringement suit in the United States District Court for the Southern District of New York, charging Microsoft with liability for domestic and foreign installations of Windows. Neither Windows software (e.g., in a box on the shelf) nor a computer standing alone (i.e., without Windows installed) infringes AT&T’s patent. Infringement occurs only when Windows is installed on a computer, thereby rendering it capable of performing as the patented speech processor. Microsoft stipulated that by installing Windows on its own computers during the software development process, it directly infringed the ’580 patent.[Footnote 5] Microsoft further acknowledged that by licensing copies of Windows to manufacturers of computers sold in the United States, it induced infringement of AT&T’s patent.[Footnote 6] Id., at 42a; Brief for Petitioner 3–4; Brief for Respondent 9, 19. Microsoft denied, however, any liability based on the master disks and electronic transmissions it dispatched to foreign manufacturers, thus joining issue with AT&T. By sending Windows to foreign manufacturers, AT&T contended, Microsoft “supplie[d] … from the United States,” for “combination” abroad, “components” of AT&T’s patented speech processor; accordingly, AT&T urged, Microsoft was liable under §271(f). See supra, at 5 (reproducing text of §271(f)). Microsoft responded that unincorporated software, because it is intangible information, cannot be typed a “component” of an invention under §271(f). In any event, Microsoft urged, the foreign-generated copies of Windows actually installed abroad were not “supplie[d] … from the United States.” Rejecting these responses, the District Court held Microsoft liable under §271(f). 71 USPQ 2d 1118 (SDNY 2004). On appeal, a divided panel of the Court of Appeals for the Federal Circuit affirmed. 414 F. 3d 1366 (2005). We granted certiorari, 549 U. S. ___ (2006), and now reverse. III A This case poses two questions: First, when, or in what form, does software qualify as a “component” under §271(f)? Second, were “components” of the foreign-made computers involved in this case “supplie[d]” by Microsoft “from the United States”? [Footnote 7] As to the first question, no one in this litigation argues that software can never rank as a “component” under §271(f). The parties disagree, however, over the stage at which software becomes a component. Software, the “set of instructions, known as code, that directs a computer to perform specified functions or operations,” Fantasy Sports Properties, Inc. v. Sportsline.com, Inc., 287 F. 3d 1108, 1118 (CA Fed. 2002), can be conceptualized in (at least) two ways. One can speak of software in the abstract: the instructions themselves detached from any medium. (An analogy: The notes of Beethoven’s Ninth Symphony.) One can alternatively envision a tangible “copy” of software, the instructions encoded on a medium such as a CD-ROM. (Sheet music for Beethoven’s Ninth.) AT&T argues that software in the abstract, not simply a particular copy of software, qualifies as a “component” under §271(f). Microsoft and the United States argue that only a copy of software, not software in the abstract, can be a component.[Footnote 8] The significance of these diverse views becomes apparent when we turn to the second question: Were components of the foreign-made computers involved in this case “supplie[d]” by Microsoft “from the United States”? If the relevant components are the copies of Windows actually installed on the foreign computers, AT&T could not persuasively argue that those components, though generated abroad, were “supplie[d] … from the United States” as §271(f) requires for liability to attach.[Footnote 9] If, on the other hand, Windows in the abstract qualifies as a component within §271(f)’s compass, it would not matter that the master copies of Windows software dispatched from the United States were not themselves installed abroad as working parts of the foreign computers.[Footnote 10] With this explanation of the relationship between the two questions in view, we further consider the twin inquiries. B First, when, or in what form, does software become a “component” under §271(f)? We construe §271(f)’s terms “in accordance with [their] ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994). Section 271(f) applies to the supply abroad of the “components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components.” §271(f)(1) (emphasis added). The provision thus applies only to “such components”[Footnote 11] as are combined to form the “patented invention” at issue. The patented invention here is AT&T’s speech-processing computer. Until it is expressed as a computer-readable “copy,” e.g., on a CD-ROM, Windows software—indeed any software detached from an activating medium—remains uncombinable. It cannot be inserted into a CD-ROM drive or downloaded from the Internet; it cannot be installed or executed on a computer. Abstract software code is an idea without physical embodiment, and as such, it does not match §271(f)’s categorization: “components” amenable to “combination.” Windows abstracted from a tangible copy no doubt is information—a detailed set of instructions—and thus might be compared to a blueprint (or anything containing design information, e.g., a schematic, template, or prototype). A blueprint may contain precise instructions for the construction and combination of the components of a patented device, but it is not itself a combinable component of that device. AT&T and its amici do not suggest otherwise. Cf. Pellegrini v. Analog Devices, Inc., 375 F. 3d 1113, 1117–1119 (CA Fed. 2004) (transmission abroad of instructions for production of patented computer chips not covered by §271(f)). AT&T urges that software, at least when expressed as machine-readable object code, is distinguishable from design information presented in a blueprint. Software, unlike a blueprint, is “modular”; it is a stand-alone product developed and marketed “for use on many different types of computer hardware and in conjunction with many other types of software.” Brief for Respondent 5; Tr. of Oral Arg. 46. Software’s modularity persists even after installation; it can be updated or removed (deleted) without affecting the hardware on which it is installed. Ibid. Software, unlike a blueprint, is also “dynamic.” Tr. of Oral Arg. 46. After a device has been built according to a blueprint’s instructions, the blueprint’s work is done (as AT&T puts it, the blueprint’s instructions have been “exhausted,” ibid.). Software’s instructions, in contrast, are contained in and continuously performed by a computer. Brief for Respondent 27–28; Tr. of Oral Arg. 46. See also Eolas Technologies Inc. v. Microsoft Corp., 399 F. 3d 1325, 1339 (CA Fed. 2005) (“[S]oftware code … drives the functional nucleus of the finished computer product.” (quoting Imagexpo, L. L. C. v. Microsoft Corp., 299 F. Supp. 2d 550, 553 (ED Va. 2003))). The distinctions advanced by AT&T do not persuade us to characterize software, uncoupled from a medium, as a combinable component. Blueprints too, or any design information for that matter, can be independently developed, bought, and sold. If the point of AT&T’s argument is that we do not see blueprints lining stores’ shelves, the same observation may be made about software in the abstract: What retailers sell, and consumers buy, are copies of software. Likewise, before software can be contained in and continuously performed by a computer, before it can be updated or deleted, an actual, physical copy of the software must be delivered by CD-ROM or some other means capable of interfacing with the computer.[Footnote 12] Because it is so easy to encode software’s instructions onto a medium that can be read by a computer, AT&T intimates, that extra step should not play a decisive role under §271(f). But the extra step is what renders the software a usable, combinable part of a computer; easy or not, the copy-producing step is essential. Moreover, many tools may be used easily and inexpensively to generate the parts of a device. A machine for making sprockets might be used by a manufacturer to produce tens of thousands of sprockets an hour. That does not make the machine a “component” of the tens of thousands of devices in which the sprockets are incorporated, at least not under any ordinary understanding of the term “component.” Congress, of course, might have included within §271(f)’s compass, for example, not only combinable “components” of a patented invention, but also “information, instructions, or tools from which those components readily may be generated.” It did not. In sum, a copy of Windows, not Windows in the abstract, qualifies as a “component” under §271(f).[Footnote 13] C The next question, has Microsoft “supplie[d] … from the United States” components of the computers here involved? Under a conventional reading of §271(f)’s text, the answer would be “No,” for the foreign-made copies of Windows actually installed on the computers were “supplie[d]” from places outside the United States. The Federal Circuit majority concluded, however, that “for software ‘components,’ the act of copying is subsumed in the act of ‘supplying.’ ” 414 F. 3d, at 1370. A master sent abroad, the majority observed, differs not at all from the exact copies, easily, inexpensively, and swiftly generated from the master; hence “sending a single copy abroad with the intent that it be replicated invokes §271(f) liability for th[e] foreign-made copies.” Ibid.; cf. post, at 2 (Stevens, J., dissenting) (“[A] master disk is the functional equivalent of a warehouse of components … that Microsoft fully expects to be incorporated into foreign-manufactured computers.”). Judge Rader, dissenting, noted that “supplying” is ordinarily understood to mean an activity separate and distinct from any subsequent “copying, replicating, or reproducing—in effect manufacturing.” 414 F. 3d, at 1372–1373 (internal quotation marks omitted); see id., at 1373 (“[C]opying and supplying are separate acts with different consequences—particularly when the ‘supplying’ occurs in the United States and the copying occurs in Dsseldorf or Tokyo. As a matter of logic, one cannot supply one hundred components of a patented invention without first making one hundred copies of the component … .”). He further observed: “The only true difference between making and supplying software components and physical components [of other patented inventions] is that copies of software components are easier to make and transport.” Id., at 1374. But nothing in §271(f)’s text, Judge Rader maintained, renders ease of copying a relevant, no less decisive, factor in triggering liability for infringement. See ibid. We agree. Section 271(f) prohibits the supply of components “from the United States … in such manner as to actively induce the combination of such components.” §271(f)(1) (emphasis added). Under this formulation, the very components supplied from the United States, and not copies thereof, trigger §271(f) liability when combined abroad to form the patented invention at issue. Here, as we have repeatedly noted, see supra, at 1–2, 5–6, the copies of Windows actually installed on the foreign computers were not themselves supplied from the United States.[Footnote 14] Indeed, those copies did not exist until they were generated by third parties outside the United States.[Footnote 15] Copying software abroad, all might agree, is indeed easy and inexpensive. But the same could be said of other items: “Keys or machine parts might be copied from a master; chemical or biological substances might be created by reproduction; and paper products might be made by electronic copying and printing.” Brief for United States as Amicus Curiae 24. See also supra, at 11–12 (rejecting argument similarly based on ease of copying in construing “component”). Section 271(f) contains no instruction to gauge when duplication is easy and cheap enough to deem a copy in fact made abroad nevertheless “supplie[d] … from the United States.” The absence of anything addressing copying in the statutory text weighs against a judicial determination that replication abroad of a master dispatched from the United States “supplies” the foreign-made copies from the United States within the intendment of §271(f).[Footnote 16] D Any doubt that Microsoft’s conduct falls outside §271(f)’s compass would be resolved by the presumption against extraterritoriality, on which we have already touched. See supra, at 2, 4. The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law. The traditional understanding that our patent law “operate[s] only domestically and d[oes] not extend to foreign activities,” Fisch & Allen, supra, at 559, is embedded in the Patent Act itself, which provides that a patent confers exclusive rights in an invention within the United States. 35 U. S. C. §154(a)(1) (patentee’s rights over invention apply to manufacture, use, or sale “throughout the United States” and to importation “into the United States”). See Deepsouth, 406 U. S., at 531 (“Our patent system makes no claim to extraterritorial effect”; our legislation “d[oes] not, and [was] not intended to, operate beyond the limits of the United States, and we correspondingly reject the claims of others to such control over our markets.” (quoting Brown, 19 How., at 195)). As a principle of general application, moreover, we have stated that courts should “assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws.” F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 164 (2004); see EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991). Thus, the United States accurately conveyed in this case: “Foreign conduct is [generally] the domain of foreign law,” and in the area here involved, in particular, foreign law “may embody different policy judgments about the relative rights of inventors, competitors, and the public in patented inventions.” Brief for United States as Amicus Curiae 28. Applied to this case, the presumption tugs strongly against construction of §271(f) to encompass as a “component” not only a physical copy of software, but also software’s intangible code, and to render “supplie[d] … from the United States” not only exported copies of software, but also duplicates made abroad. AT&T argues that the presumption is inapplicable because Congress enacted §271(f) specifically to extend the reach of United States patent law to cover certain activity abroad. But as this Court has explained, “the presumption is not defeated … just because [a statute] specifically addresses [an] issue of extraterritorial application,” Smith v. United States, 507 U. S. 197, 204 (1993); it remains instructive in determining the extent of the statutory exception. See Empagran, 542 U. S., at 161–162, 164–165; Smith, 507 U. S., at 204. AT&T alternately contends that the presumption holds no sway here given that §271(f), by its terms, applies only to domestic conduct, i.e., to the supply of a patented invention’s components “from the United States.” §271(f)(1). AT&T’s reading, however, “converts a single act of supply from the United States into a springboard for liability each time a copy of the software is subsequently made [abroad] and combined with computer hardware [abroad] for sale [abroad.]” Brief for United States as Amicus Curiae 29; see 414 F. 3d, at 1373, 1375 (Rader, J., dissenting). In short, foreign law alone, not United States law, currently governs the manufacture and sale of components of patented inventions in foreign countries. If AT&T desires to prevent copying in foreign countries, its remedy today lies in obtaining and enforcing foreign patents. See Deepsouth, 406 U. S., at 531.[Footnote 17] IV AT&T urges that reading §271(f) to cover only those copies of software actually dispatched from the United States creates a “loophole” for software makers. Liability for infringing a United States patent could be avoided, as Microsoft’s practice shows, by an easily arranged circumvention: Instead of making installation copies of software in the United States, the copies can be made abroad, swiftly and at small cost, by generating them from a master supplied from the United States. The Federal Circuit majority found AT&T’s plea compelling: “Were we to hold that Microsoft’s supply by exportation of the master versions of the Windows® software—specifically for the purpose of foreign replication—avoids infringement, we would be subverting the remedial nature of §271(f), permitting a technical avoidance of the statute by ignoring the advances in a field of technology—and its associated industry practices—that developed after the enactment of §271(f)… . Section §271(f), if it is to remain effective, must therefore be interpreted in a manner that is appropriate to the nature of the technology at issue.” 414 F. 3d, at 1371. While the majority’s concern is understandable, we are not persuaded that dynamic judicial interpretation of §271(f) is in order. The “loophole,” in our judgment, is properly left for Congress to consider, and to close if it finds such action warranted. There is no dispute, we note again, that §271(f) is inapplicable to the export of design tools—blueprints, schematics, templates, and prototypes—all of which may provide the information required to construct and combine overseas the components of inventions patented under United States law. See supra, at 10–12. We have no license to attribute to Congress an unstated intention to place the information Microsoft dispatched from the United States in a separate category. Section 271(f) was a direct response to a gap in our patent law revealed by this Court’s Deepsouth decision. See supra, at 4, and n. 3. The facts of that case were undeniably at the fore when §271(f) was in the congressional hopper. In Deepsouth, the items exported were kits containing all the physical, readily assemblable parts of a shrimp deveining machine (not an intangible set of instructions), and those parts themselves (not foreign-made copies of them) would be combined abroad by foreign buyers. Having attended to the gap made evident in Deepsouth, Congress did not address other arguable gaps: Section 271(f) does not identify as an infringing act conduct in the United States that facilitates making a component of a patented invention outside the United States; nor does the provision check “suppl[ying] … from the United States” information, instructions, or other materials needed to make copies abroad.[Footnote 18] Given that Congress did not home in on the loophole AT&T describes, and in view of the expanded extraterritorial thrust AT&T’s reading of §271(f) entails, our precedent leads us to leave in Congress’ court the patent-protective determination AT&T seeks. Cf. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 431 (1984) (“In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests.”). Congress is doubtless aware of the ease with which software (and other electronic media) can be copied, and has not left the matter untouched. In 1998, Congress addressed “the ease with which pirates could copy and distribute a copyrightable work in digital form.” Universal City Studios, Inc. v. Corley, 273 F. 3d 429, 435 (CA2 2001). The resulting measure, the Digital Millennium Copyright Act, 17 U. S. C. §1201 et seq., “backed with legal sanctions the efforts of copyright owners to protect their works from piracy behind digital walls such as encryption codes or password protections.” Universal City Studios, 273 F. 3d, at 435. If the patent law is to be adjusted better “to account for the realities of software distribution,” 414 F. 3d, at 1370, the alteration should be made after focused legislative consideration, and not by the Judiciary forecasting Congress’ likely disposition. * * * For the reasons stated, the judgment of the Court of Appeals for the Federal Circuit is Reversed. The Chief Justice took no part in the consideration or decision of this case. Footnote 1 Deepsouth shipped its deveining equipment “to foreign customers in three separate boxes, each containing only parts of the 1-ton machines, yet the whole [was] assemblable in less than one hour.” Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 524 (1972). Footnote 2 See 35 U. S. C. §271(b) (1970 ed.) (“Whoever actively induces infringement of a patent shall be liable as an infringer.”); §271(c) (rendering liable as a contributory infringer anyone who sells or imports a “component” of a patented invention, “knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial non-infringing use”). Footnote 3 See also, e.g., Patent Law Amendments of 1984, S. Rep. No. 98–663, pp. 2–3 (1984) (describing §271(f) as “a response to the Supreme Court’s 1972 Deepsouth decision which interpreted the patent law not to make it infringement where the final assembly and sale is abroad”); Section-by-Section Analysis of H. R. 6286, 130 Cong. Rec. 28069 (1984) (“This proposal responds to the United States Supreme Court decision in Deepsouth … concerning the need for a legislative solution to close a loophole in [the] patent law.”). Footnote 4 Microsoft also distributes Windows to foreign manufacturers indirectly, by sending a master version to an authorized foreign “replicator”; the replicator then makes copies and ships them to the manufacturers. App. to Pet. for Cert. 45a–46a. Footnote 5 See 35 U. S. C. §271(a) (“[W]hoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.”). Footnote 6 See §271(b) (“Whoever actively induces infringement of a patent shall be liable as an infringer.”). Footnote 7 The record leaves unclear which paragraph of §271(f) AT&T’s claim invokes. While there are differences between §271(f)(1) and (f)(2), see, e.g., infra, at 18, n. 18, the parties do not suggest that those differences are outcome determinative. Cf. infra, at 14–15, n. 16 (explaining why both paragraphs yield the same result). For clarity’s sake, we focus our analysis on the text of §271(f)(1). Footnote 8 Microsoft and the United States stress that to count as a component, the copy of software must be expressed as “object code.” “Software in the form in which it is written and understood by humans is called ‘source code.’ To be functional, however, software must be converted (or ‘compiled’) into its machine-usable version,” a sequence of binary number instructions typed “object code.” Brief for United States as Amicus Curiae 4, n. 1; 71 USPQ 2d 1118, 1119, n. 5 (SDNY 2004) (recounting Microsoft’s description of the software development process). It is stipulated that object code was on the master disks and electronic transmissions Microsoft dispatched from the United States. Footnote 9 On this view of “component,” the copies of Windows on the master disks and electronic transmissions that Microsoft sent from the United States could not themselves serve as a basis for liability, because those copies were not installed on the foreign manufacturers’ computers. See §271(f)(1) (encompassing only those components “combin[ed] … outside of the United States in a manner that would infringe the patent if such combination occurred within the United States”). Footnote 10 The Federal Circuit panel in this case, relying on that court’s prior decision in Eolas Technologies Inc. v. Microsoft Corp., 399 F. 3d 1325 (2005), held that software qualifies as a component under §271(f). We are unable to determine, however, whether the Federal Circuit panels regarded as a component software in the abstract, or a copy of software. Footnote 11 “Component” is commonly defined as “a constituent part,” “element,” or “ingredient.” Webster’s Third New International Dictionary of the English Language 466 (1981). Footnote 12 The dissent, embracing AT&T’s argument, contends that, “unlike a blueprint that merely instructs a user how to do something, software actually causes infringing conduct to occur.” Post, at 3 (Stevens, J., dissenting). We have emphasized, however, that Windows can “caus[e] infringing conduct to occur”—i.e., function as part of AT&T’s speech-processing computer—only when expressed as a computer-readable copy. Abstracted from a usable copy, Windows code is intangible, uncombinable information, more like notes of music in the head of a composer than “a roller that causes a player piano to produce sound.” Ibid. Footnote 13 We need not address whether software in the abstract, or any other intangible, can ever be a component under §271(f). If an intangible method or process, for instance, qualifies as a “patented invention” under §271(f) (a question as to which we express no opinion), the combinable components of that invention might be intangible as well. The invention before us, however, AT&T’s speech-processing computer, is a tangible thing. Footnote 14 In a footnote, Microsoft suggests that even a disk shipped from the United States, and used to install Windows directly on a foreign computer, would not give rise to liability under §271(f) if the disk were removed after installation. See Brief for Petitioner 37, n. 11; cf. post, at 2–4 (Alito, J., concurring). We need not and do not reach that issue here. Footnote 15 The dissent analogizes Microsoft’s supply of master versions of Windows abroad to “the export of an inventory of … knives to be warehoused until used to complete the assembly of an infringing machine.” Post, at 2. But as we have underscored, foreign-made copies of Windows, not the masters Microsoft dispatched from the United States, were installed on the computers here involved. A more apt analogy, therefore, would be the export of knives for copying abroad, with the foreign-made copies “warehoused until used to complete the assembly of an infringing machine.” Ibid. Without stretching §271(f) beyond the text Congress composed, a copy made entirely abroad does not fit the description “supplie[d] … from the United States.” Footnote 16 Our analysis, while focusing on §271(f)(1), is equally applicable to §271(f)(2). But cf. post, at 1 (Stevens, J., dissenting) (asserting “paragraph (2) … best supports AT&T’s position here”). While the two paragraphs differ, among other things, on the quantity of components that must be “supplie[d] … from the United States” for liability to attach, see infra, at 18, n. 18, that distinction does not affect our analysis. Paragraph (2), like (1), covers only a “component” amenable to “combination.” §271(f)(2); see supra, at 9–12 (explaining why Windows in the abstract is not a combinable component). Paragraph (2), like (1), encompasses only the “[s]uppl[y] … from the United States” of “such [a] component” as will itself “be combined outside of the United States.” §271(f)(2); see supra, at 12–13 and this page (observing that foreign-made copies of Windows installed on computers abroad were not “supplie[d] … from the United States”). It is thus unsurprising that AT&T does not join the dissent in suggesting that the outcome might turn on whether we view the case under paragraph (1) or (2). Footnote 17 AT&T has secured patents for its speech processor in Canada, France, Germany, Great Britain, Japan, and Sweden. App. in No. 04–1285 (CA Fed.), p. 1477. AT&T and its amici do not relate what protections and remedies are, or are not, available under these foreign regimes. Cf. Brief for Respondent 46 (observing that “foreign patent protections are sometimes weaker than their U. S. counterparts” (emphasis added)). Footnote 18 Section 271(f)’s text does, in one respect, reach past the facts of Deepsouth. While Deepsouth exported kits containing all the parts of its deveining machines, §271(f)(1) applies to the supply abroad of “all or a substantial portion of” a patented invention’s components. And §271(f)(2) applies to the export of even a single component if it is “especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial noninfringing use.”
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551.US.393
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At a school-sanctioned and school-supervised event, petitioner Morse, the high school principal, saw students unfurl a banner stating “BONG HiTS 4 JESUS,” which she regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, Morse directed the students to take down the banner. When one of the students who had brought the banner to the event—respondent Frederick—refused, Morse confiscated the banner and later suspended him. The school superintendent upheld the suspension, explaining, inter alia, that Frederick was disciplined because his banner appeared to advocate illegal drug use in violation of school policy. Petitioner school board also upheld the suspension. Frederick filed suit under 42 U. S. C. §1983, alleging that the school board and Morse had violated his First Amendment rights. The District Court granted petitioners summary judgment, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s speech rights. The Ninth Circuit reversed. Accepting that Frederick acted during a school-authorized activity and that the banner expressed a positive sentiment about marijuana use, the court nonetheless found a First Amendment violation because the school punished Frederick without demonstrating that his speech threatened substantial disruption. It also concluded that Morse was not entitled to qualified immunity because Frederick’s right to display the banner was so clearly established that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional. Held: Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick. Pp. 5–15. (a) Frederick’s argument that this is not a school speech case is rejected. The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district’s student-conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them. Frederick stood among other students across the street from the school and directed his banner toward the school, making it plainly visible to most students. Under these circumstances, Frederick cannot claim he was not at school. Pp. 5–6. (b) The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. At least two interpretations of the banner’s words—that they constitute an imperative encouraging viewers to smoke marijuana or, alternatively, that they celebrate drug use—demonstrate that the sign promoted such use. This pro-drug interpretation gains further plausibility from the paucity of alternative meanings the banner might bear. Pp. 6–8. (c) A principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. In Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment, id., at 504, that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school,” id., at 513. The Court in Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, however, upheld the suspension of a student who delivered a high school assembly speech employing “an elaborate, graphic, and explicit sexual metaphor,” id., at 678. Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. 478 U. S., at 679–680. This Court reversed, holding that the school was “within its permissible authority in imposing sanctions … in response to [the student’s] offensively lewd and indecent speech.” Id., at 685. Two basic principles may be distilled from Fraser. First, it demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. See, id., at 682–683. In school, however, his First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker, supra, at 506. Second, Fraser established that Tinker’s mode of analysis is not absolute, since the Fraser Court did not conduct the “substantial disruption” analysis. Subsequently, the Court has held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights … at the schoolhouse gate,’ … the nature of those rights is what is appropriate for children in school,” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 655–656, and has recognized that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest, id., at 661. Drug abuse by the Nation’s youth is a serious problem. For example, Congress has declared that part of a school’s job is educating students about the dangers of drug abuse, see, e.g., the Safe and Drug-Free Schools and Communities Act of 1994, and petitioners and many other schools have adopted policies aimed at implementing this message. Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The “special characteristics of the school environment,” Tinker, 393 U. S., at 506, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse. Id., at 508, 509, distinguished. Pp. 8–15. 439 F. 3d 1114, reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which Kennedy, J., joined. Breyer, J., filed an opinion concurring in the judgment in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.
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At a school-sanctioned and school-supervised event, a high school principal saw some of her students unfurl a large banner conveying a message she reasonably regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, the principal directed the students to take down the banner. One student—among those who had brought the banner to the event—refused to do so. The principal confiscated the banner and later suspended the student. The Ninth Circuit held that the principal’s actions violated the First Amendment, and that the student could sue the principal for damages. Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969). At the same time, we have held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 682 (1986), and that the rights of students “must be ‘applied in light of the special characteristics of the school environment.’ ” Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 266 (1988) (quoting Tinker, supra, at 506). Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. I On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers were to proceed along a street in front of Juneau-Douglas High School (JDHS) while school was in session. Petitioner Deborah Morse, the school principal, decided to permit staff and students to participate in the Torch Relay as an approved social event or class trip. App. 22–23. Students were allowed to leave class to observe the relay from either side of the street. Teachers and administrative officials monitored the students’ actions. Respondent Joseph Frederick, a JDHS senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were JDHS students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” App. to Pet. for Cert. 70a. The large banner was easily readable by the students on the other side of the street. Principal Morse immediately crossed the street and demanded that the banner be taken down. Everyone but Frederick complied. Morse confiscated the banner and told Frederick to report to her office, where she suspended him for 10 days. Morse later explained that she told Frederick to take the banner down because she thought it encouraged illegal drug use, in violation of established school policy. Juneau School Board Policy No. 5520 states: “The Board specifically prohibits any assembly or public expression that … advocates the use of substances that are illegal to minors … .” Id., at 53a. In addition, Juneau School Board Policy No. 5850 subjects “[p]upils who participate in approved social events and class trips” to the same student conduct rules that apply during the regular school program. Id., at 58a. Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld it, limiting it to time served (8 days). In a memorandum setting forth his reasons, the superintendent determined that Frederick had displayed his banner “in the midst of his fellow students, during school hours, at a school-sanctioned activity.” Id., at 63a. He further explained that Frederick “was not disciplined because the principal of the school ‘disagreed’ with his message, but because his speech appeared to advocate the use of illegal drugs.” Id., at 61a. The superintendent continued: “The common-sense understanding of the phrase ‘bong hits’ is that it is a reference to a means of smoking marijuana. Given [Frederick’s] inability or unwillingness to express any other credible meaning for the phrase, I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs. [Frederick’s] speech was not political. He was not advocating the legalization of marijuana or promoting a religious belief. He was displaying a fairly silly message promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the Torch Relay. [Frederick’s] speech was potentially disruptive to the event and clearly disruptive of and inconsistent with the school’s educational mission to educate students about the dangers of illegal drugs and to discourage their use.” Id., at 61a–62a. Relying on our decision in Fraser, supra, the superintendent concluded that the principal’s actions were permissible because Frederick’s banner was “speech or action that intrudes upon the work of the schools.” App. to Pet. for Cert. 62a (internal quotation marks omitted). The Juneau School District Board of Education upheld the suspension. Frederick then filed suit under 42 U. S. C. §1983, alleging that the school board and Morse had violated his First Amendment rights. He sought declaratory and injunctive relief, unspecified compensatory damages, punitive damages, and attorney’s fees. The District Court granted summary judgment for the school board and Morse, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s First Amendment rights. The court found that Morse reasonably interpreted the banner as promoting illegal drug use—a message that “directly contravened the Board’s policies relating to drug abuse prevention.” App. to Pet. for Cert. 36a–38a. Under the circumstances, the court held that “Morse had the authority, if not the obligation, to stop such messages at a school-sanctioned activity.” Id., at 37a. The Ninth Circuit reversed. Deciding that Frederick acted during a “school-authorized activit[y],” and “proceed[ing] on the basis that the banner expressed a positive sentiment about marijuana use,” the court nonetheless found a violation of Frederick’s First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a “risk of substantial disruption.” 439 F. 3d 1114, 1118, 1121–1123 (2006). The court further concluded that Frederick’s right to display his banner was so “clearly established” that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional, and that Morse was therefore not entitled to qualified immunity. Id., at 1123–1125. We granted certiorari on two questions: whether Frederick had a First Amendment right to wield his banner, and, if so, whether that right was so clearly established that the principal may be held liable for damages. 549 U. S. ___ (2006). We resolve the first question against Frederick, and therefore have no occasion to reach the second.[Footnote 1] II At the outset, we reject Frederick’s argument that this is not a school speech case—as has every other authority to address the question. See App. 22–23 (Principal Morse); App. to Pet. for Cert. 63a (superintendent); id., at 69a (school board); id., at 34a–35a (District Court); 439 F. 3d, at 1117 (Ninth Circuit). The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” App. 22–23, and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” App. to Pet. for Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.” Id., at 63a. There is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, see Porter v. Ascension Parish School Bd., 393 F. 3d 608, 615, n. 22 (CA5 2004), but not on these facts. III The message on Frederick’s banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all. Frederick himself claimed “that the words were just nonsense meant to attract television cameras.” 439 F. 3d, at 1117–1118. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one. As Morse later explained in a declaration, when she saw the sign, she thought that “the reference to a ‘bong hit’ would be widely understood by high school students and others as referring to smoking marijuana.” App. 24. She further believed that “display of the banner would be construed by students, District personnel, parents and others witnessing the display of the banner, as advocating or promoting illegal drug use”—in violation of school policy. Id., at 25; see ibid. (“I told Frederick and the other members of his group to put the banner down because I felt that it violated the [school] policy against displaying … material that advertises or promotes use of illegal drugs”). We agree with Morse. At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits …”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion. See Guiles v. Marineau, 461 F. 3d 320, 328 (CA2 2006) (discussing the present case and describing the sign as “a clearly pro-drug banner”). The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is “meaningless and funny.” 439 F. 3d, at 1116. The dissent similarly refers to the sign’s message as “curious,” post, at 1, “ambiguous,” ibid., “nonsense,” post, at 2, “ridiculous,” post, at 6, “obscure,” post, at 7, “silly,” post, at 12, “quixotic,” post, at 13, and “stupid,” ibid. Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs. The dissent mentions Frederick’s “credible and uncontradicted explanation for the message—he just wanted to get on television.” Post, at 12. But that is a description of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says. The way Frederick was going to fulfill his ambition of appearing on television was by unfurling a pro-drug banner at a school event, in the presence of teachers and fellow students. Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” post, at 16, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, see post, at 14–16, this is plainly not a case about political debate over the criminalization of drug use or possession. IV The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may. In Tinker, this Court made clear that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.” 393 U. S., at 506. Tinker involved a group of high school students who decided to wear black armbands to protest the Vietnam War. School officials learned of the plan and then adopted a policy prohibiting students from wearing armbands. When several students nonetheless wore armbands to school, they were suspended. Id., at 504. The students sued, claiming that their First Amendment rights had been violated, and this Court agreed. Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” Id., at 513. The essential facts of Tinker are quite stark, implicating concerns at the heart of the First Amendment. The students sought to engage in political speech, using the armbands to express their “disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them.” Id., at 514. Political speech, of course, is “at the core of what the First Amendment is designed to protect.” Virginia v. Black, 538 U. S. 343, 365 (2003). The only interest the Court discerned underlying the school’s actions was the “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” or “an urgent wish to avoid the controversy which might result from the expression.” Tinker, 393 U. S., at 509, 510. That interest was not enough to justify banning “a silent, passive expression of opinion, unaccompanied by any disorder or disturbance.” Id., at 508. This Court’s next student speech case was Fraser, 478 U. S. 675. Matthew Fraser was suspended for delivering a speech before a high school assembly in which he employed what this Court called “an elaborate, graphic, and explicit sexual metaphor.” Id., at 678. Analyzing the case under Tinker, the District Court and Court of Appeals found no disruption, and therefore no basis for disciplining Fraser. 478 U. S., at 679–680. This Court reversed, holding that the “School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech.” Id., at 685. The mode of analysis employed in Fraser is not entirely clear. The Court was plainly attuned to the content of Fraser’s speech, citing the “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.” Id., at 680. But the Court also reasoned that school boards have the authority to determine “what manner of speech in the classroom or in school assembly is inappropriate.” Id., at 683. Cf. id., at 689 (Brennan, J., concurring in judgment) (“In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate [Fraser’s] speech because they disagreed with the views he sought to express”). We need not resolve this debate to decide this case. For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. See Cohen v. California, 403 U. S. 15 (1971); Fraser, supra, at 682–683. In school, however, Fraser’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker, supra, at 506. Second, Fraser established that the mode of analysis set forth in Tinker is not absolute. Whatever approach Fraser employed, it certainly did not conduct the “substantial disruption” analysis prescribed by Tinker, supra, at 514. See Kuhlmeier, 484 U. S., at 271, n. 4 (disagreeing with the proposition that there is “no difference between the First Amendment analysis applied in Tinker and that applied in Fraser,” and noting that the holding in Fraser was not based on any showing of substantial disruption). Our most recent student speech case, Kuhlmeier, concerned “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” 484 U. S., at 271. Staff members of a high school newspaper sued their school when it chose not to publish two of their articles. The Court of Appeals analyzed the case under Tinker, ruling in favor of the students because it found no evidence of material disruption to classwork or school discipline. 795 F. 2d 1368, 1375 (CA8 1986). This Court reversed, holding that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Kuhlmeier, supra, at 273. Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur. The case is nevertheless instructive because it confirms both principles cited above. Kuhlmeier acknowledged that schools may regulate some speech “even though the government could not censor similar speech outside the school.” Id., at 266. And, like Fraser, it confirms that the rule of Tinker is not the only basis for restricting student speech.[Footnote 2] Drawing on the principles applied in our student speech cases, we have held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights . . . at the schoolhouse gate,’ . . . the nature of those rights is what is appropriate for children in school.” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 655–656 (1995) (quoting Tinker, supra, at 506). In particular, “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” New Jersey v. T. L. O., 469 U. S. 325, 340 (1985). See Vernonia, supra, at 656 (“Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere . . .”); Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U. S. 822, 829-830 (2002) (“ ‘special needs’ inhere in the public school context”; “[w]hile schoolchildren do not shed their constitutional rights when they enter the schoolhouse, Fourth Amendment rights . . . are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children” (quoting Vernonia, 515 U. S., at 656; citation and some internal quotation marks omitted). Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest. Id., at 661. Drug abuse can cause severe and permanent damage to the health and well-being of young people: “School years are the time when the physical, psychological, and addictive effects of drugs are most severe. Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound; children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor. And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted.” Id., at 661–662 (citations and internal quotation marks omitted). Just five years ago, we wrote: “The drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.” Earls, supra, at 834, and n. 5. The problem remains serious today. See generally 1 National Institute on Drug Abuse, National Institutes of Health, Monitoring the Future: National Survey Results on Drug Use, 1975–2005, Secondary School Students (2006). About half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and about one-fifth of 8th graders. Id., at 99. Nearly one in four 12th graders has used an illicit drug in the past month. Id., at 101. Some 25% of high schoolers say that they have been offered, sold, or given an illegal drug on school property within the past year. Dept. of Health and Human Services, Centers for Disease Control and Prevention, Youth Risk Behavior Surveillance—United States, 2005, 55 Morbidity and Mortality Weekly Report, Surveillance Summaries, No. SS–5, p. 19 (June 9, 2006). Congress has declared that part of a school’s job is educating students about the dangers of illegal drug use. It has provided billions of dollars to support state and local drug-prevention programs, Brief for United States as Amicus Curiae 1, and required that schools receiving federal funds under the Safe and Drug-Free Schools and Communities Act of 1994 certify that their drug prevention programs “convey a clear and consistent message that … the illegal use of drugs [is] wrong and harmful.” 20 U. S. C. §7114(d)(6) (2000 ed., Supp. IV). Thousands of school boards throughout the country—including JDHS—have adopted policies aimed at effectuating this message. See Pet. for Cert. 17–21. Those school boards know that peer pressure is perhaps “the single most important factor leading schoolchildren to take drugs,” and that students are more likely to use drugs when the norms in school appear to tolerate such behavior. Earls, supra, at 840 (Breyer, J., concurring). Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse. The “special characteristics of the school environment,” Tinker, 393 U. S., at 506, and the governmental interest in stopping student drug abuse—reflected in the policies of Congress and myriad school boards, including JDHS—allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of “undifferentiated fear or apprehension of disturbance” or “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id., at 508, 509. The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, App. 92–95; App. to Pet. for Cert. 53a, extends well beyond an abstract desire to avoid controversy. Petitioners urge us to adopt the broader rule that Frederick’s speech is proscribable because it is plainly “offensive” as that term is used in Fraser. See Reply Brief for Petitioners 14–15. We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of “offensive.” After all, much political and religious speech might be perceived as offensive to some. The concern here is not that Frederick’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use. Although accusing this decision of doing “serious violence to the First Amendment” by authorizing “viewpoint discrimination,” post, at 2, 5 (opinion of Stevens, J.), the dissent concludes that “it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting,” post, at 6–7. Nor do we understand the dissent to take the position that schools are required to tolerate student advocacy of illegal drug use at school events, even if that advocacy falls short of inviting “imminent” lawless action. See post, at 7 (“[I]t is possible that our rigid imminence requirement ought to be relaxed at schools”). And even the dissent recognizes that the issues here are close enough that the principal should not be held liable in damages, but should instead enjoy qualified immunity for her actions. See post, at 1. Stripped of rhetorical flourishes, then, the debate between the dissent and this opinion is less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use. We have explained our view that it does. The dissent’s contrary view on that relatively narrow question hardly justifies sounding the First Amendment bugle. * * * School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Justice Breyer would rest decision on qualified immunity without reaching the underlying First Amendment question. The problem with this approach is the rather significant one that it is inadequate to decide the case before us. Qualified immunity shields public officials from money damages only. See Wood v. Strickland, 420 U. S. 308, 314, n. 6 (1975). In this case, Frederick asked not just for damages, but also for declaratory and injunctive relief. App. 13. Justice Breyer’s proposed decision on qualified immunity grounds would dispose of the damages claims, but Frederick’s other claims would remain unaddressed. To get around that problem, Justice Breyer hypothesizes that Frederick’s suspension—the target of his request for injunctive relief—“may well be justified on non-speech-related grounds.” See post, at 9. That hypothesis was never considered by the courts below, never raised by any of the parties, and is belied by the record, which nowhere suggests that the suspension would have been justified solely on non-speech-related grounds. Footnote 2 The dissent’s effort to find inconsistency between our approach here and the opinion in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U. S. ___ (2007), see post, at 12 (opinion of Stevens, J.), overlooks what was made clear in Tinker, Fraser, and Kuhlmeier: student First Amendment rights are “applied in light of the special characteristics of the school environment.” Tinker, 393 U. S., at 506. See Fraser, 478 U. S., at 682; Kuhlmeier, 484 U. S., at 266. And, as discussed above, supra, at 8, there is no serious argument that Frederick’s banner is political speech of the sort at issue in Wisconsin Right to Life.
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551.US.644
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Under the Clean Water Act (CWA), petitioner Environmental Protection Agency (EPA) initially administers each State’s National Pollution Discharge Elimination System (NPDES) permitting program, but CWA §402(b) provides that the EPA “shall approve” transfer of permitting authority to a State upon application and a showing that the State has met nine specified criteria. Section 7(a)(2) of the Endangered Species Act of 1973 (ESA) requires federal agencies to consult with agencies designated by the Secretaries of Commerce and the Interior to “insure” that a proposed agency action is unlikely to jeopardize an endangered or threatened species. The Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) administer the ESA. Once a consultation process is complete, a written biological opinion is issued, which may suggest alternative actions to protect a jeopardized species or its critical habitat. When Arizona officials sought EPA authorization to administer the State’s NPDES program, the EPA initiated consultation with the FWS to determine whether the transfer would adversely affect any listed species. The FWS regional office wanted potential impacts taken into account, but the EPA disagreed, finding that §402(b)’s mandatory nature stripped it of authority to disapprove a transfer based on any other considerations. The dispute was referred to the agencies’ national offices for resolution. The FWS’s biological opinion concluded that the requested transfer would not jeopardize listed species. The EPA concluded that Arizona had met each of §402(b)’s nine criteria and approved the transfer, noting that the biological opinion had concluded the consultation “required” by ESA §7(a)(2). Respondents sought review in the Ninth Circuit, petitioner National Association of Home Builders intervened, and part of respondent Defenders of Wildlife’s separate action was consolidated with the suit. The court held that the EPA’s transfer approval was arbitrary and capricious because the EPA had relied on contradictory positions regarding its §7(a)(2) responsibilities during the administrative process. Rather than remanding the case for the agency to explain its decision, however, the court reviewed the EPA’s substantive construction of the statutes. It did not dispute that Arizona had met CWA §402(b)’s nine criteria, but nevertheless concluded that ESA §7(a)(2) required the EPA to determine whether its transfer decision would jeopardize listed species, in effect adding a tenth criterion. The court dismissed the argument that the EPA’s approval was not subject to §7(a)(2) because it was not a “discretionary action” under 50 CFR §402.03, §7(a)(2)’s interpretative regulation. The court thus vacated the EPA’s transfer decision. Held: 1. The Ninth Circuit’s determination that the EPA’s action was arbitrary and capricious is not fairly supported by the record. This Court will not vacate an agency’s decision under the arbitrary and capricious standard unless the agency “relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43. Here, the Ninth Circuit concluded that the EPA’s decision was internally inconsistent in its statements during the review process. Federal courts ordinarily are empowered to review only an agency’s final action, and the fact that a local agency representative’s preliminary determination is later overruled at a higher agency level does not render the decisionmaking process arbitrary and capricious. The EPA’s final approval notice stating that §7(a)(2)’s required consultation process had been concluded may be inconsistent with its previously expressed position—and position in this litigation—that §7(a)(2)’s consultation requirement is not triggered by a §402 transfer application, but that is not the type of error requiring a remand. By the time the statement was issued, the EPA and FWS had already consulted, and the question whether that consultation had been required was not germane to the final agency decision. Thus, this Court need not further delay the permitting authority transfer by remanding to the agency for clarification. Respondents suggest that the EPA nullified their right to participate in the application proceedings by altering its legal position during the pendency of the transfer decision and its associated litigation, but they do not suggest that they were deprived of their right to comment during the comment period made available under the EPA’s regulations. Pp. 10–14. 2. Because §7(a)(2)’s no-jeopardy duty covers only discretionary agency actions, it does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. Pp. 14–25. (a) At first glance the legislative commands here are irreconcilable. Section 402(b)’s “shall approve” language is mandatory and its list exclusive; if the nine specified criteria are satisfied, the EPA does not have the discretion to deny a transfer application. Section 7(a)(2)’s similarly imperative language would literally add a tenth criterion to §402(b). Pp. 14–15. (b) While a later enacted statute (such as the ESA) can sometimes operate to amend or even repeal an earlier statutory provision (such as the CWA), “repeals by implication are not favored” and will not be presumed unless the legislature’s intention “to repeal [is] clear and manifest.” Watt v. Alaska, 451 U. S. 259, 267. Statutory repeal will not be inferred “unless the later statute ‘ “expressly contradict[s] the original act” ’ or such a construction ‘ “is absolutely necessary [to give the later statute’s words] any meaning at all.” ’ ” Traynor v. Turnage, 485 U. S. 535, 548. Otherwise, “a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower v. Touche Ross & Co., 426 U. S. 148, 153. The Ninth Circuit’s reading of §7(a)(2) would effectively repeal §402(b)’s mandate that the EPA “shall” issue a permit whenever all nine exclusive statutory prerequisites are met. Section 402(b) does not just set minimum requirements; it affirmatively mandates a transfer’s approval, thus operating as a ceiling as well as a floor. By adding an additional criterion, the Ninth Circuit raises that floor and alters the statute’s command. Read broadly, the Ninth Circuit’s construction would also partially override every federal statute mandating agency action by subjecting such action to the further condition that it not jeopardize listed species. Pp. 15–17. (c) Title 50 CFR §402.03, promulgated by the NMFS and FWS and applying §7(a)(2) “to all actions in which there is discretionary Federal involvement or control” (emphasis added), harmonizes the CWA and ESA by giving effect to the ESA’s no-jeopardy mandate whenever an agency has discretion to do so, but not when the agency is forbidden from considering such extrastatutory factors. The Court owes “some degree of deference to the Secretary’s reasonable interpretation” of the ESA, Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 703. Deference is not due if Congress has made its intent “clear” in the statutory text, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842, but “if the statute is silent or ambiguous … the question … is whether the agency’s answer is based on a permissible construction of the statute,” id., at 843. Because the “meaning—or ambiguity—of certain words or phrases may only become evident … in context,” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132, §7(a)(2) must be read against the statutory backdrop of the many mandatory agency directives whose operation it would implicitly abrogate or repeal were it construed as broadly as the Ninth Circuit did below. Such a reading leaves a fundamental ambiguity. An agency cannot simultaneously obey the differing mandates of ESA §7(a)(2) and CWA §402(b), and consequently the statutory language—read in light of the canon against implied repeals—does not itself provide clear guidance as to which command must give way. Thus, it is appropriate to look to the implementing agency’s expert interpretation, which harmonizes the statutes by applying §7(a)(2) to guide agencies’ existing discretionary authority, but not reading it to override express statutory mandates. This interpretation is reasonable in light of the statute’s text and the overall statutory scheme and is therefore entitled to Chevron deference. The regulation’s focus on “discretionary” actions accords with the commonsense conclusion that, when an agency is required to do something by statute, it simply lacks the power to “insure” that such action will not jeopardize listed species. The basic principle of Department of Transportation v. Public Citizen, 541 U. S. 752—that an agency cannot be considered the legal “cause” of an action that it has no statutory discretion not to take, id., at 770—supports the reasonableness of the FWS’s interpretation. Pp. 17–22. (d) Respondents’ contrary position is not supported by TVA v. Hill, 437 U. S. 153, which had no occasion to answer the question presented in these cases. Pp. 22–24. (e) Also unavailing is the argument that EPA’s decision to transfer NPDES permitting authority to Arizona represented a “discretionary” agency action. While the EPA may exercise some judgment in determining whether a State has shown that it can carry out §402(b)’s enumerated criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in §402(b) authorizes the EPA to consider the protection of listed species as an end in itself when evaluating a transfer application. And to the extent that some of §402(b)’s criteria may result in environmental benefits to marine species, Arizona has satisfied each of those criteria. Respondents’ argument has also been disclaimed by the FWS and the NMFS, the agencies primarily charged with administering §7(a)(2) and the drafters of the regulations implementing that section. Pp. 24–25. 420 F. 3d 946, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion. Together with No. 06–549, Environmental Protection Agency v. Defenders of Wildlife et al., also on certiorari to the same court.
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These cases concern the interplay between two federal environmental statutes. Section 402(b) of the Clean Water Act requires that the Environmental Protection Agency transfer certain permitting powers to state authorities upon an application and a showing that nine specified criteria have been met. Section 7(a)(2) of the Endangered Species Act of 1973 provides that a federal agency must consult with agencies designated by the Secretaries of Commerce and the Interior in order to “insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species.” The question presented is whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. We conclude that it does not. The transfer of permitting authority to state authorities—who will exercise that authority under continuing federal oversight to ensure compliance with relevant mandates of the Endangered Species Act and other federal environmental protection statutes—was proper. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit. I A 1 The Clean Water Act of 1972 (CWA), 86 Stat. 816, 33 U. S. C. §1251 et seq., established a National Pollution Discharge Elimination System (NPDES) that is designed to prevent harmful discharges into the Nation’s waters. The Environmental Protection Agency (EPA) initially administers the NPDES permitting system for each State, but a State may apply for a transfer of permitting authority to state officials. See 33 U. S. C. §1342; see also §1251(b) (“It is the policy of Congress that the Stat[e] … implement the permit progra[m] under sectio[n] 1342 … of this title”). If authority is transferred, then state officials—not the federal EPA—have the primary responsibility for reviewing and approving NPDES discharge permits, albeit with continuing EPA oversight.[Footnote 1] Under §402(b) of the CWA, “the Governor of each State desiring to administer its own permit program for discharges into navigable waters within its jurisdiction may submit to [the EPA] a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact,” as well as a certification “that the laws of such State … provide adequate authority to carry out the described program.” 33 U. S. C. §1342(b). The same section provides that the EPA “shall approve each submitted program” for transfer of permitting authority to a State “unless [it] determines that adequate authority does not exist” to ensure that nine specified criteria are satisfied. Ibid. These criteria all relate to whether the state agency that will be responsible for permitting has the requisite authority under state law to administer the NPDES program.[Footnote 2] If the criteria are met, the transfer must be approved. 2 The Endangered Species Act of 1973 (ESA), 87 Stat. 884, as amended, 16 U. S. C. §1531 et seq., is intended to protect and conserve endangered and threatened species and their habitats. Section 4 of the ESA directs the Secretaries of Commerce and the Interior to list threatened and endangered species and to designate their critical habitats. §1533. The Fish and Wildlife Service (FWS) administers the ESA with respect to species under the jurisdiction of the Secretary of the Interior, while the National Marine Fisheries Service (NMFS) administers the ESA with respect to species under the jurisdiction of the Secretary of Commerce. See 50 CFR §§17.11, 222.101(a), 223.102, 402.01(b) (2006). Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora. Section 7(a)(2) provides that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of Commerce or the Interior], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species.” 16 U. S. C. §1536(a)(2). Once the consultation process contemplated by §7(a)(2) has been completed, the Secretary is required to give the agency a written biological opinion “setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” §1536(b)(3)(A); see also 50 CFR §402.14(h). If the Secretary concludes that the agency action would place the listed species in jeopardy or adversely modify its critical habitat, “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [§7(a)(2)] and can be taken by the Federal agency … in implementing the agency action.” 16 U. S. C. §1536(b)(3)(A); see also 50 CFR §402.14(h)(3). Regulations promulgated jointly by the Secretaries of Commerce and the Interior provide that, in order to qualify as a “reasonable and prudent alternative,” an alternative course of action must be able to be implemented in a way “consistent with the scope of the Federal agency’s legal authority and jurisdiction.” §402.02. Following the issuance of a “jeopardy” opinion, the agency must either terminate the action, implement the proposed alternative, or seek an exemption from the Cabinet-level Endangered Species Committee pursuant to 16 U. S. C. §1536(e). The regulations also provide that “Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.” 50 CFR §402.03. B 1 In February 2002, Arizona officials applied for EPA authorization to administer that State’s NPDES program.[Footnote 3] The EPA initiated consultation with the FWS to determine whether the transfer of permitting authority would adversely affect any listed species. The FWS regional office concluded that the transfer of authority would not cause any direct impact on water quality that would adversely affect listed species. App. to Pet. for Cert. in No. 06–340, p. 564. However, the FWS office was concerned that the transfer could result in the issuance of more discharge permits, which would lead to more development, which in turn could have an indirect adverse effect on the habitat of certain upland species, such as the cactus ferruginous pygmy-owl and the Pima pineapple cactus. Specifically, the FWS feared that, because §7(a)(2)’s consultation requirement does not apply to permitting decisions by state authorities,[Footnote 4] the transfer of authority would empower Arizona officials to issue individual permits without considering and mitigating their indirect impact on these upland species. Id., at 565–566. The FWS regional office therefore urged that, in considering the proposed transfer of permitting authority, those involved in the consultation process should take these potential indirect impacts into account. The EPA disagreed, maintaining that “its approval action, which is an administrative transfer of authority, [would not be] the cause of future non-discharge-related impacts on endangered species from projects requiring State NPDES permits.” Id., at 564. As a factual matter, the EPA believed that the link between the transfer of permitting authority and the potential harm that could result from increased development was too attenuated. Id., at 654. And as a legal matter, the EPA concluded that the mandatory nature of CWA §402(b)—which directs that the EPA “shall approve” a transfer request if that section’s nine statutory criteria are met—stripped it of authority to disapprove a transfer based on any other considerations. Id., at 654–655. Pursuant to procedures set forth in a memorandum of understanding between the agencies, the dispute was referred to the agencies’ national offices for resolution. In December 2002, the FWS issued its biological opinion, which concluded that the requested transfer would not cause jeopardy to listed species. The opinion reasoned that “the loss of section 7-related conservation benefits . . . is not an indirect effect of the authorization action,” id., at 117, because “loss of any conservation benefit is not caused by EPA’s decision to approve the State of Arizona’s program. Rather, the absence of the section 7 process that exists with respect to Federal NPDES permits reflects Congress’ decision to grant States the right to administer these programs under state law provided the State’s program meets the requirements of [§]402(b) of the Clean Water Act.” Id., at 114. In addition, the FWS opined that the EPA’s continuing oversight of Arizona’s permitting program, along with other statutory protections, would adequately protect listed species and their habitats following the transfer. Id., at 101–107. The EPA concluded that Arizona had met each of the nine statutory criteria listed in §402(b) and approved the transfer of permitting authority. In the notice announcing the approval of the transfer, the EPA noted that the issuance of the FWS’s biological opinion had “conclude[d] the consultation process required by ESA section 7(a)(2) and reflects the [FWS’] agreement with EPA that the approval of the State program meets the substantive requirements of the ESA.” Id., at 73. 2 On April 2, 2003, respondents filed a petition in the United States Court of Appeals for the Ninth Circuit seeking review of the transfer pursuant to 33 U. S. C. §1369(b)(1)(D), which allows private parties to seek direct review of the EPA’s determinations regarding state permitting programs in the federal courts of appeals. The court granted petitioner National Association of Homebuilders leave to intervene as a respondent in that case. Respondent Defenders of Wildlife also filed a separate action in the United States District Court for the District of Arizona, alleging, among other things, that the biological opinion issued by the FWS in support of the proposed transfer did not comply with the ESA’s standards. The District Court severed that claim and transferred it to the Court of Appeals for the Ninth Circuit, which consolidated the case with the suit challenging the EPA transfer. See 420 F. 3d 946 (2005). A divided panel of the Ninth Circuit held that the EPA’s approval of the transfer was arbitrary and capricious because the EPA “relied during the administrative proceedings on legally contradictory positions regarding its section 7 obligations.” Id., at 959. The court concluded that the EPA “fail[ed] to understand its own authority under section 7(a)(2) to act on behalf of listed species and their habitat,” id., at 977, because “the two propositions that underlie the EPA’s action—that (1) it must, under the [ESA], consult concerning transfers of CWA permitting authority, but (2) it is not permitted, as a matter of law, to take into account the impact on listed species in making the transfer decision—cannot both be true,” id., at 961. The court therefore concluded that it was required to “remand to the agency for a plausible explanation of its decision, based on a single, coherent interpretation of the statute.” Id., at 962. The panel majority, however, did not follow this course of action. Rather, the panel went on to review the EPA’s substantive construction of the statutes at issue and held that the ESA granted the EPA both the power and the duty to determine whether its transfer decision would jeopardize threatened or endangered species. The panel did not dispute that Arizona had met the nine criteria set forth in §402(b) of the CWA, but the panel nevertheless concluded that §7(a)(2) of the ESA provided an “affirmative grant of authority to attend to [the] protection of listed species,” id., at 965, in effect adding a tenth criterion to those specified in §402(b). The panel dismissed the argument that the EPA’s approval of the transfer application was not subject to §7(a)(2) because it was not a “discretionary action” within the meaning of 50 CFR §402.03 (interpreting §7(a)(2) to apply only to agency actions “in which there is discretionary Federal involvement and control”). 420 F. 3d, at 967–969. It viewed the FWS’s regulation as merely “coterminous” with the express statutory language encompassing all agency actions that are “ ‘authorized, funded, or carried out’ ” by the agency. Id., at 969 (quoting 16 U. S. C. §1536(a)(2)). On these grounds, the court granted the petition and vacated the EPA’s transfer decision. In dissent, Judge Thompson explained that the transfer decision was not a “discretionary action” under 50 CFR §402.03 because “[t]he Clean Water Act, by its very terms, permits the EPA to consider only the nine specified factors. If a state’s proposed permitting program meets the enumerated requirements,” he reasoned, “the EPA administrator ‘shall approve’ the program. 33 U. S. C. §1342(b). This [c]ongressional directive does not permit the EPA to impose additional conditions.” 420 F. 3d, at 980. The Ninth Circuit denied rehearing and rehearing en banc. 450 F. 3d 394 (2006). Writing for the six judges who dissented from the denial of rehearing en banc, Judge Kozinski disagreed with the panel’s conclusion that the EPA’s analysis was so internally inconsistent as to be arbitrary and capricious. He further noted that, if the panel was correct on this point, the proper resolution would have been to remand to the EPA for further explanation. Id., at 396–398. On the statutory question, Judge Kozinski echoed Judge Thompson’s conclusion that once the nine criteria set forth in §402(b) of the CWA are satisfied, a transfer is mandatory and nondiscretionary. Id., at 397–399. He rejected the panel majority’s broad construction of ESA §7(a)(2), concluding that “[i]f the ESA were as powerful as the majority contends, it would modify not only the EPA’s obligation under the CWA, but every categorical mandate applicable to every federal agency.” Id., at 399, n. 4. The Ninth Circuit’s construction of §7(a)(2) is at odds with that of other Courts of Appeals. Compare 420 F. 3d 946 (case below), with Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F. 2d 27, 33–34 (CADC 1992), and American Forest & Paper Association v. EPA, 137 F. 3d 291, 298–299 (CA5 1998). We granted certiorari to resolve this conflict, 549 U. S. ___ (2007), and we now reverse. II Before addressing this question of statutory interpretation, however, we first consider whether the Court of Appeals erred in holding that the EPA’s transfer decision was arbitrary and capricious because, in that court’s words, the agencies involved in the decision “relied … on legally contradictory positions regarding [their] section 7 obligations.” App. to Pet. for Cert. in No. 06–340, at 23. As an initial matter, we note that if the EPA’s action was arbitrary and capricious, as the Ninth Circuit held, the proper course would have been to remand to the agency for clarification of its reasons. See Gonzales v. Thomas, 547 U. S. 183 (2006) (per curiam). Indeed, the court below expressly recognized that this finding required it to “remand to the agency for a plausible explanation of its decision, based on a single, coherent interpretation of the statute.” App. to Pet. for Cert. in No. 06–340, at 28. But the Ninth Circuit did not take this course; instead, it jumped ahead to resolve the merits of the dispute. In so doing, it erroneously deprived the agency of its usual administrative avenue for explaining and reconciling the arguably contradictory rationales that sometimes appear in the course of lengthy and complex administrative decisions. We need not examine this question further, however, because we conclude that the Ninth Circuit’s determination that the EPA’s action was arbitrary and capricious is not fairly supported by the record. Review under the arbitrary and capricious standard is deferential; we will not vacate an agency’s decision unless it “has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983). “We will, however, ‘uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.’ ” Ibid. (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 286 (1974)). The Court of Appeals concluded that the EPA’s decision was “internally inconsistent” because, in its view, the agency stated—both during preliminary review of Arizona’s transfer application and in the Federal Register notice memorializing its final action—“that section 7 requires consultation regarding the effect of a permitting transfer on listed species.” App. to Pet. for Cert. in No. 06–340, at 23. With regard to the various statements made by the involved agencies’ regional offices during the early stages of consideration, the only “inconsistency” respondents can point to is the fact that the agencies changed their minds—something that, as long as the proper procedures were followed, they were fully entitled to do. The federal courts ordinarily are empowered to review only an agency’s final action, see 5 U. S. C. §704, and the fact that a preliminary determination by a local agency representative is later overruled at a higher level within the agency does not render the decisionmaking process arbitrary and capricious. Respondents also point to the final Federal Register notice memorializing the EPA’s approval of Arizona’s transfer application. This notice stated that the FWS’s issuance of its biological opinion had “conclude[d] the consultation process required by ESA section 7(a)(2).” App. to Pet. for Cert. in No. 06–340, at 73. Respondents contend that this statement is inconsistent with the EPA’s previously expressed position—and their position throughout this litigation—that §7(a)(2)’s consultation requirement is not triggered by a transfer application under §402 of the CWA. We are not persuaded that this statement constitutes the type of error that requires a remand. By the time the Federal Register statement was issued, the EPA had already consulted with the FWS about the Arizona application, and the question whether that consultation had been required, as opposed to voluntarily undertaken by the agency, was simply not germane to the final agency transfer decision. The Federal Register statement, in short, was dictum, and it had no bearing on the final agency action that respondents challenge. Mindful of Congress’ admonition that in reviewing agency action, “due account shall be taken of the rule of prejudicial error,” 5 U. S. C. §706, we do not believe that this stray statement, which could have had no effect on the underlying agency action being challenged, requires that we further delay the transfer of permitting authority to Arizona by remanding to the agency for clarification. See also PDK Labs., Inc. v. United States Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (“In administrative law, as in federal civil and criminal litigation, there is a harmless error rule”).[Footnote 5] We further disagree with respondents’ suggestion that, by allegedly altering its legal position while the Arizona transfer decision and its associated litigation was pending, the “EPA is effectively nullifying respondents’ rights to participate in administrative proceedings concerning Arizona’s application, and particularly respondents’ rights under EPA’s own regulations to comment on NPDES transfer applications.” Brief for Respondents 28 (citing 40 CFR §123.61(b); emphasis deleted). Consistent with EPA regulations, the agency made available “a comment period of not less than 45 days during which interested members of the public [could] express their views on the State program.” §123.61(a)(1). Respondents do not suggest that they were deprived of their right to comment during this period.[Footnote 6] Respondents also contend that if the case were remanded to the EPA, they would raise additional challenges—including, for example, a challenge to the EPA’s provision of financial assistance to Arizona for the administration of its NPDES program. However, as explained below, any such agency action is separate and independent of the agency’s decision to authorize the transfer of permitting authority pursuant to §402(b). See n. 11, infra. We express no opinion as to the viability of a separate administrative or legal challenge to such actions. III A We turn now to the substantive statutory question raised by the petitions, a question that requires us to mediate a clash of seemingly categorical—and, at first glance, irreconcilable—legislative commands. Section 402(b) of the CWA provides, without qualification, that the EPA “shall approve” a transfer application unless it determines that the State lacks adequate authority to perform the nine functions specified in the section. 33 U. S. C. §1342(b). By its terms, the statutory language is mandatory and the list exclusive; if the nine specified criteria are satisfied, the EPA does not have the discretion to deny a transfer application. Cf. Lopez v. Davis, 531 U. S. 230, 241 (2001) (noting Congress’ “use of a mandatory ‘shall’ … to impose discretionless obligations”); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (“[T]he mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion”); Association of Civil Technicians v. FLRA, 22 F. 3d 1150, 1153 (CADC 1994) (“The word ‘shall’ generally indicates a command that admits of no discretion on the part of the person instructed to carry out the directive”); Black’s Law Dictionary 1375 (6th ed. 1990) (“As used in statutes … this word is generally imperative or mandatory”). Neither respondents nor the Ninth Circuit has ever disputed that Arizona satisfied each of these nine criteria. See 420 F. 3d, at 963, n. 11; Brief for Respondents 19, n. 8. The language of §7(a)(2) of the ESA is similarly imperative: it provides that “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize” endangered or threatened species or their habitats. 16 U. S. C. §1536(a)(2). This mandate is to be carried out through consultation and may require the agency to adopt an alternative course of action. As the author of the panel opinion below recognized, applying this language literally would “ad[d] one [additional] requirement to the list of considerations under the Clean Water Act permitting transfer provision.” 450 F. 3d, at 404, n. 2 (Berzon, J., concurring in denial of rehearing en banc) (emphasis in original). That is, it would effectively repeal the mandatory and exclusive list of criteria set forth in §402(b), and replace it with a new, expanded list that includes §7(a)(2)’s no-jeopardy requirement. B While a later enacted statute (such as the ESA) can sometimes operate to amend or even repeal an earlier statutory provision (such as the CWA), “repeals by implication are not favored” and will not be presumed unless the “intention of the legislature to repeal [is] clear and manifest.” Watt v. Alaska, 451 U. S. 259, 267 (1981) (internal quotation marks omitted). We will not infer a statutory repeal “unless the later statute ‘ “expressly contradict[s] the original act” ’ or unless such a construction ‘ “is absolutely necessary . . . in order that [the] words [of the later statute] shall have any meaning at all.” ’ ” Traynor v. Turnage, 485 U. S. 535, 548 (1988) (quoting Radzanower v. Touche Ross & Co., 426 U. S. 148, 153 (1976), in turn quoting T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 98 (2d ed. 1874)); see also Branch v. Smith, 538 U. S. 254, 273 (2003) (“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) (“[T]he intention of the legislature to repeal must be clear and manifest”). Outside these limited circumstances, “a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower, supra, at 153. Here, reading §7(a)(2) as the Court of Appeals did would effectively repeal §402(b)’s statutory mandate by engrafting a tenth criterion onto the CWA.[Footnote 7] Section 402(b) of the CWA commands that the EPA “shall” issue a permit whenever all nine exclusive statutory prerequisites are met. Thus, §402(b) does not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandates that the transfer “shall” be approved if the specified criteria are met. The provision operates as a ceiling as well as a floor. By adding an additional criterion, the Ninth Circuit’s construction of §7(a)(2) raises that floor and alters §402(b)’s statutory command.[Footnote 8] The Ninth Circuit’s reading of §7(a)(2) would not only abrogate §402(b)’s statutory mandate, but also result in the implicit repeal of many additional otherwise categorical statutory commands. Section 7(a)(2) by its terms applies to “any action authorized, funded, or carried out by” a federal agency—covering, in effect, almost anything that an agency might do. Reading the provision broadly would thus partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species. See, e.g., Platte River Whooping Crane Critical Habitat Maintenance Trust v. FERC, 962 F. 2d, at 33–34 (considering whether §7(a)(2) overrides the Federal Power Act’s prohibition on amending annual power licenses). While the language of §7(a)(2) does not explicitly repeal any provision of the CWA (or any other statute), reading it for all that it might be worth runs foursquare into our presumption against implied repeals. C 1 The agencies charged with implementing the ESA have attempted to resolve this tension through regulations implementing §7(a)(2). The NMFS and FWS, acting jointly on behalf of the Secretaries of Commerce and the Interior and following notice-and-comment rulemaking procedures, have promulgated a regulation stating that “Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.” 50 CFR §402.03 (emphasis added). Pursuant to this regulation, §7(a)(2) would not be read as impliedly repealing nondiscretionary statutory mandates, even when they might result in some agency action. Rather, the ESA’s requirements would come into play only when an action results from the exercise of agency discretion. This interpretation harmonizes the statutes by giving effect to the ESA’s no-jeopardy mandate whenever an agency has discretion to do so, but not when the agency is forbidden from considering such extrastatutory factors. We have recognized that “[t]he latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe some degree of deference to the Secretary’s reasonable interpretation” of the statutory scheme. Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 703 (1995). But such deference is appropriate only where “Congress has not directly addressed the precise question at issue” through the statutory text. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress… . [However,] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id., at 842–843 (footnotes omitted). In making the threshold determination under Chevron, “a reviewing court should not confine itself to examining a particular statutory provision in isolation.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132 (2000). Rather, “[t]he meaning—or ambiguity—of certain words or phrases may only become evident when placed in context… . It is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’ ” Id., at 132–133 (quoting Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989)). We must therefore read §7(a)(2) of the ESA against the statutory backdrop of the many mandatory agency directives whose operation it would implicitly abrogate or repeal if it were construed as broadly as the Ninth Circuit did below. When §7(a)(2) is read this way, we are left with a fundamental ambiguity that is not resolved by the statutory text. An agency cannot simultaneously obey the differing mandates set forth in §7(a)(2) of the ESA and §402(b) of the CWA, and consequently the statutory language—read in light of the canon against implied repeals—does not itself provide clear guidance as to which command must give way. In this situation, it is appropriate to look to the implementing agency’s expert interpretation, which cabins §7(a)(2)’s application to “actions in which there is discretionary Federal involvement or control.” 50 CFR §402.03. This reading harmonizes the statutes by applying §7(a)(2) to guide agencies’ existing discretionary authority, but not reading it to override express statutory mandates. 2 We conclude that this interpretation is reasonable in light of the statute’s text and the overall statutory scheme, and that it is therefore entitled to deference under Chevron. Section 7(a)(2) requires that an agency “insure” that the actions it authorizes, funds, or carries out are not likely to jeopardize listed species or their habitats. To “insure” something—as the court below recognized—means “ ‘[t]o make certain, to secure, to guarantee (some thing, event, etc.).’ ” 420 F. 3d, at 963 (quoting 7 Oxford English Dictionary 1059 (2d ed. 1989)). The regulation’s focus on “discretionary” actions accords with the commonsense conclusion that, when an agency is required to do something by statute, it simply lacks the power to “insure” that such action will not jeopardize endangered species. This reasoning is supported by our decision in Department of Transportation v. Public Citizen, 541 U. S. 752 (2004). That case concerned safety regulations that were promulgated by the Federal Motor Carrier Safety Administration (FMCSA) and had the effect of triggering a Presidential directive allowing Mexican trucks to ply their trade on United States roads. The Court held that the National Environmental Policy Act (NEPA) did not require the agency to assess the environmental effects of allowing the trucks entry because “the legally relevant cause of the entry of the Mexican trucks is not FMCSA’s action, but instead the actions of the President in lifting the moratorium and those of Congress in granting the President this authority while simultaneously limiting FMCSA’s discretion.” Id., at 769 (emphasis in original). The Court concluded that “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” Id., at 770. We do not suggest that Public Citizen controls the outcome here; §7(a)(2), unlike NEPA, imposes a substantive (and not just a procedural) statutory requirement, and these cases involve agency action more directly related to environmental concerns than the FMCSA’s truck safety regulations. But the basic principle announced in Public Citizen—that an agency cannot be considered the legal “cause” of an action that it has no statutory discretion not to take—supports the reasonableness of the FWS’s interpretation of §7(a)(2) as reaching only discretionary agency actions. See also California v. United States, 438 U. S. 645, 668, n. 21 (1978) (holding that a statutory requirement that federal operating agencies conform to state water usage rules applied only to the extent that it was not “inconsistent with other congressional directives”). 3 The court below simply disregarded §402.03’s interpretation of the ESA’s reach, dismissing “the regulation’s reference to ‘discretionary … involvement’ ” as merely “congruent with the statutory reference to actions ‘authorized, funded, or carried out’ by the agency.” 420 F. 3d, 968. But this reading cannot be right. Agency discretion presumes that an agency can exercise “judgment” in connection with a particular action. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415–416 (1971); see also Random House Dictionary of the English Language 411 (unabridged ed. 1967) (“discretion” defined as “the power or right to decide or act according to one’s own judgment; freedom of judgment or choice”). As the mandatory language of §402(b) itself illustrates, not every action authorized, funded, or carried out by a federal agency is a product of that agency’s exercise of discretion. The dissent’s interpretation of §402.03 is similarly implausible. The dissent would read the regulation as simply clarifying that discretionary agency actions are included within the scope of §7(a)(2), but not confining the statute’s reach to such actions. See post, at 7–11. But this reading would render the regulation entirely superfluous. Nothing in either §7(a)(2) or the other agency regulations interpreting that section, see §402.02, suggests that discretionary actions are excluded from the scope of the ESA, and there is thus no need for a separate regulation to bring them within the statute’s scope. On the dissent’s reading, §402.03’s reference to “discretionary” federal involvement is mere surplusage, and we have cautioned against reading a text in a way that makes part of it redundant. See, e.g., TRW Inc. v. Andrews, 534 U. S. 19, 31 (2001). This history of the regulation also supports the reading to which we defer today. As the dissent itself points out, the proposed version of §402.03 initially stated that “Section 7 and the requirements of this Part apply to all actions in which there is Federal involvement or control,” 48 Fed. Reg. 29999 (1983) (emphasis added); the Secretary of the Interior modified this language to provide (as adopted in the Final Rule now at issue) that the statuory requirements apply to “all actions in which there is discretionary Federal involvement or control,” 51 Fed. Reg. 19958 (1986) (emphasis added). The dissent’s reading would rob the word “discretionary” of any effect, and substitute the earlier, proposed version of the regulation for the text that was actually adopted. In short, we read §402.03 to mean what it says: that §7(a)(2)’s no-jeopardy duty covers only discretionary agency actions and does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. This reading not only is reasonable, inasmuch as it gives effect to the ESA’s provision, but also comports with the canon against implied repeals because it stays §7(a)(2)’s mandate where it would effectively override otherwise mandatory statutory duties. D Respondents argue that our opinion in TVA v. Hill, 437 U. S. 153 (1978), supports their contrary position. In that case, we held that the ESA prohibited the Tennessee Valley Authority (TVA) from putting into operation the Tellico Dam—despite the fact that the agency had already spent over $100 million on the nearly completed project—because doing so would have threatened the critical habitat of the endangered snail darter. In language on which respondents rely, the Court concluded that “the ordinary meaning” of §7 of the ESA contained “no exemptions” and reflected “a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies.” Id., at 173, 185, 188. TVA v. Hill, however, had no occasion to answer the question presented in these cases. That case was decided almost a decade before the adoption in 1986 of the regulations contained in 50 CFR §402.03. And in any event, the construction project at issue in TVA v. Hill, while expensive, was also discretionary. The TVA argued that by continuing to make lump-sum appropriations to the TVA, some of which were informally earmarked for the Tellico Dam project, Congress had implicitly repealed §7’s no-jeopardy requirement as it applied to that project. See 437 U. S., at 189–193. The Court rejected this argument, concluding that “[t]he Appropriations Acts did not themselves identify the projects for which the sums had been appropriated” and that reports by congressional committees allegedly directing the TVA to complete the project lacked the force of law. Id., at 189, n. 35. Central to the Court’s decision was the conclusion that Congress did not mandate that the TVA put the dam into operation; there was no statutory command to that effect; and there was therefore no basis for contending that applying the ESA’s no-jeopardy requirement would implicitly repeal another affirmative congressional directive.[Footnote 9] TVA v. Hill thus supports the position, expressed in §402.03, that the ESA’s no-jeopardy mandate applies to every discretionary agency action—regardless of the expense or burden its application might impose. But that case did not speak to the question whether §7(a)(2) applies to non-discretionary actions, like the one at issue here. The regulation set forth in 50 CFR §402.03 addressed that question, and we defer to its reasonable interpretation. IV Finally, respondents and their amici argue that, even if §7(a)(2) is read to apply only to “discretionary” agency actions, the decision to transfer NPDES permitting authority to Arizona represented such an exercise of discretion. They contend that the EPA’s decision to authorize a transfer is not entirely mechanical; that it involves some exercise of judgment as to whether a State has met the criteria set forth in §402(b); and that these criteria incorporate references to wildlife conservation that bring consideration of §7(a)(2)’s no-jeopardy mandate properly within the agency’s discretion. The argument is unavailing. While the EPA may exercise some judgment in determining whether a State has demonstrated that it has the authority to carry out §402(b)’s enumerated statutory criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list. Nothing in the text of §402(b) authorizes the EPA to consider the protection of threatened or endangered species as an end in itself when evaluating a transfer application. And to the extent that some of the §402(b) criteria may result in environmental benefits to marine species,[Footnote 10] there is no dispute that Arizona has satisfied each of those statutory criteria. Respondents’ argument has been disclaimed not only by the EPA, but also by the FWS and the NMFS, the two agencies primarily charged with administering §7(a)(2) and the drafters of the regulations implementing that section. Each agency recently issued a formal letter concluding that the authorization of an NPDES permitting transfer is not the kind of discretionary agency action that is covered by §402.03. See App. to Pet. for Cert. in No. 06–549, at 103a–116a. An agency’s interpretation of the meaning of its own regulations is entitled to deference “unless plainly erroneous or inconsistent with the regulation,” Auer v. Robbins, 519 U. S. 452, 461 (1997) (internal quotation marks omitted), and that deferential standard is plainly met here.[Footnote 11] * * * Applying Chevron, we defer to the agency’s reasonable interpretation of ESA §7(a)(2) as applying only to “actions in which there is discretionary Federal involvement or control.” 50 CFR §402.03. Since the transfer of NPDES permitting authority is not discretionary, but rather is mandated once a State has met the criteria set forth in §402(b) of the CWA, it follows that a transfer of NPDES permitting authority does not trigger §7(a)(2)’s consultation and no-jeopardy requirements. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and these cases are remanded for further proceedings consistent with this opinion. Footnote 1 The State must advise the EPA of each permit it proposes to issue, and the EPA may object to any permit. 33 U. S. C. §§1342(d)(1), (2); see also 40 CFR §123.44(c) (2006). If the State cannot address the EPA’s concerns, authority over the permit reverts to the EPA. 33 U. S. C. §1342(d)(4). Footnote 2 The State must demonstrate that it has the ability: (1) to issue fixed-term permits that apply and ensure compliance with the CWA’s substantive requirements and which are revocable for cause; (2) to inspect, monitor, and enter facilities and to require reports to the extent required by the CWA; (3) to provide for public notice and public hearings; (4) to ensure that the EPA receives notice of each permit application; (5) to ensure that any other State whose waters may be affected by the issuance of a permit may submit written recommendations and that written reasons be provided if such recommendations are not accepted; (6) to ensure that no permit is issued if the Army Corps of Engineers concludes that it would substantially impair the anchoring and navigation of navigable waters; (7) to abate violations of permits or the permit program, including through civil and criminal penalties; (8) to ensure that any permit for a discharge from a publicly owned treatment works includes conditions requiring the identification of the type and volume of certain pollutants; and (9) to ensure that any industrial user of any publicly owned treatment works will comply with certain of the CWA’s substantive provisions. §§1342(b)(1)–(9). Footnote 3 At the time when Arizona applied, the EPA had already transferred permitting authority to local authorities in 44 other States and several United States Territories. Footnote 4 By its terms, §7(a)(2)’s consultation requirement applies only to “action[s] authorized, funded, or carried out” by “Federal agenc[ies].” Footnote 5 We also note that the agencies involved have resolved any ambiguity in their positions going forward. Following the issuance of the panel’s opinion below, the EPA—in connection with the State of Alaska’s pending application for transfer of NPDES permitting authority—requested confirmation from the FWS and NMFS of the EPA’s position that “the no-jeopardy and consultation duties of ESA Section 7(a)(2) do not apply to approval of a State’s application to administer the NPDES program,” in the apparent hope that obtaining those agencies’ views “in advance of processing Alaska’s application may avoid a repetition of” the confusion that occurred during the Arizona permitting process. App. to Pet. for Cert. in No. 06–549, at 96a, 95a. In response, both the FWS and the NMFS confirmed their understanding that “there is no need to conduct Section 7 consultations on proposed actions to approve State NPDES programs because such actions are not the cause of any impact on listed species and do not constitute discretionary federal agency actions to which Section 7 applies.” Id., at 107a; see also id., at 116a (NMFS “concur[s] with EPA’s conclusion that EPA is not required to engage in section 7 consultation on applications to approve State programs in situations under Section 402(b) of the CWA”). Footnote 6 Nor is there any independent right to public comment with regard to consultations conducted under §7(a)(2)—a consultation process that we conclude, in any case, was not required here. See 51 Fed. Reg. 19928 (1986) (“Nothing in section 7 authorizes or requires the Service to provide for public involvement (other than that of the applicant) in the ‘interagency’ consultation process”). Footnote 7 Justice Stevens’ dissenting opinion attempts to paper over this conflict by suggesting that the EPA and the agencies designated by the Secretary of the Interior could reconcile the commands of the CWA and the ESA by “generat[ing] an alternative course of action whereby the transfer could still take place … but in such a way that would honor the mandatory requirements of §7(a)(2).” Post, at 15. For example, it suggests that the EPA could condition transfers of permitting authority on the State’s acceptance of additional continuing oversight by the EPA (presumably beyond that oversight already contemplated by the CWA’s statutory language). Post, at 17–19. But such a take-it-or-leave-it approach, no less than a straightforward rejection of a transfer application, would impose conditions on an NPDES transfer beyond those set forth in §402(b), and thus alter the CWA’s statutory command. Footnote 8 It does not matter whether this alteration is characterized as an amendment or a partial repeal. Every amendment of a statute effects a partial repeal to the extent that the new statutory command displaces earlier, inconsistent commands, and we have repeatedly recognized that implied amendments are no more favored than implied repeals. See, e.g., Regional Rail Reorganization Act Cases, 419 U. S. 102, 134 (1974) (“ ‘A new statute will not be read as wholly or even partially amending a prior one unless there exists a ‘positive repugnancy’ between the provisions of the new and those of the old that cannot be reconciled’ ”) (quoting In re Penn Central Transportation Co., 384 F. Supp. 895, 943 (Sp. Ct. R. R. R. A. 1974)); United States v. Welden, 377 U. S. 95, 103, n. 12 (1964) (“Amendments by implication … are not favored”); United States v. Madigan, 300 U. S. 500, 506 (1937) (“[T]he modification by implication of the settled construction of an earlier and different section is not favored”). Footnote 9 The dissent is incorrect in suggesting that “if the Secretary of the Interior had not declared the snail darter an endangered species … the TVA surely would have been obligated to spend the additional funds that Congress appropriated to complete the project.” Post, at 4. To the contrary, the Court in TVA v. Hill found that there was no clear repugnancy between the ESA and the Acts appropriating funds to the TVA because the latter simply did not require the agency to use any of the generally appropriated funds to complete the Tellico Dam project. 437 U. S., at 189–193. Footnote 10 For example, §402(b) requires the EPA to consider whether the State has the legal authority to enforce applicable water quality standards—some of which, in turn, are informed by the “judgment” of the EPA’s Administrator. 33 U. S. C. §1342(b)(1)(A); see also, e.g., §1312. But the permit transfer process does not itself require scrutiny of the underlying standards or of their effect on marine or wildlife—only of the state applicant’s “authority . . . [t]o issue permits which . . . apply, and insure compliance with” the applicable standards. §1342(b)(1)(A) (emphasis added). In any event, respondents do not dispute that, as both the EPA and the FWS determined, the transfer of permitting authority to Arizona officials would have no adverse water quality related impact on any listed species. See App. to Pet. for Cert. in No. 06–340, at 562–563, 615–617. Footnote 11 Respondents also contend that the EPA has taken, or will take, other discretionary actions apart from the transfer authorization that implicate the ESA. For example, they argue that the EPA’s alleged provision of funding to Arizona for the administration of its clean water programs is the kind of discretionary agency action that is subject to §7(a)(2). However, assuming this is true, any such funding decision is a separate agency action that is outside the scope of this lawsuit. Respondents also point to the fact that, following the transfer of permitting authority, the EPA will retain oversight authority over the state permitting process, including the power to object to proposed permits. But the fact that the EPA may exercise discretionary oversight authority—which may trigger §7(a)(2)’s consultation and no-jeopardy obligations—after the transfer does not mean that the decision authorizing the transfer is itself discretionary.
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549.US.158
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Respondent Sorrell was injured while working for the petitioner railroad (Norfolk), and sought damages for his injuries in Missouri state court under the Federal Employers’ Liability Act (FELA), which makes a railroad liable for an employee’s injuries “resulting in whole or in part from [the railroad’s] negligence,” Section 1. FELA reduces any damages awarded to an employee “in proportion to the amount [of negligence] attributable to” the employee, Section 3. Missouri’s jury instructions apply different causation standards to railroad negligence and employee contributory negligence in FELA actions. An employee will be found contributorily negligent if his negligence “directly contributed to cause” the injury, while railroad negligence is measured by whether the railroad’s negligence “contributed in whole or in part” to the injury. After the trial court overruled Norfolk’s objection that the instruction on contributory negligence contained a different standard than the railroad negligence instruction, the jury awarded Sorrell $1.5 million. The Missouri Court of Appeals affirmed, rejecting Norfolk’s contention that the same causation standard should apply to both parties’ negligence. Held: 1. Norfolk’s attempt to expand the question presented to encompass what the FELA causation standard should be, not simply whether the standard should be the same for railroad negligence and employee contributory negligence, is rejected. This Court is typically reluctant to permit parties to smuggle additional questions into a case after the grant of certiorari. Although the Court could consider the question of what standard applies as anterior to the question whether the standards may differ, the substantive content of the causation standard is a significant enough issue that the Court prefers not to address it when it has not been fully presented. Pp. 4–6. 2. The same causation standard applies to railroad negligence under FELA Section 1 as to employee contributory negligence under Section 3. Absent express language to the contrary, the elements of a FELA claim are determined by reference to the common law, Urie v. Thompson, 337 U. S. 163, 182, and unless common-law principles are expressly rejected in FELA’s text, they are entitled to great weight, Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 544. The prevailing common-law view at the time FELA was enacted was that the causation standards for negligence and contributory negligence were the same, and FELA did not expressly depart from this approach. This is strong evidence against Missouri’s practice of applying different standards, which is apparently unique among the States. Departing from the common-law practice would in any event have been a peculiar approach for Congress to take in FELA: As a practical matter, it is difficult to reduce damages “in proportion” to the employee’s negligence if the relevance of each party’s negligence is measured by a different causation standard. The Court thinks it far simpler for a jury to conduct the apportionment FELA mandates if the jury compares like with like. Contrary to Sorrell’s argument, the use of the language “in whole or in part” with respect to railroad negligence in FELA Section 1, but not with respect to employee contributory negligence in Section 3, does not justify a departure from the common-law practice of applying a single causation standard. It would have made little sense to include the “in whole or in part” language in Section 3; if the employee’s contributory negligence contributed “in whole” to his injury, there would be no recovery against the railroad in the first place. The language made sense in Section 1, however, to clarify that there could be recovery against the railroad even if it were only partially responsible for the injury. In any event, there is no reason to read the statute as a whole to encompass different causation standards, since Section 3 simply does not address causation. Finally, FELA’s remedial purpose cannot compensate for the lack of statutory text: FELA does not abrogate the common-law approach. A review of FELA model instructions indicates that there are a variety of ways to instruct a jury to apply the same causation standard to railroad negligence and employee contributory negligence. Missouri has the same flexibility as other jurisdictions in deciding how to do so, so long as it now joins them in applying a single standard. On remand, the Missouri Court of Appeals should address Sorrell’s argument that any error in the jury instructions was harmless, and should determine whether a new trial is required. Pp. 6–14. 170 S. W. 3d 35, vacated and remanded. Roberts, C. J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Souter, J., filed a concurring opinion, in which Scalia and Alito, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment.
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Timothy Sorrell, respondent in this Court, sustained neck and back injuries while working as a trackman for petitioner Norfolk Southern Railway Company. He filed suit in Missouri state court under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C. §§51–60, which makes railroads liable to their employees for injuries “resulting in whole or in part from the negligence” of the railroad, §51. Contributory negligence is not a bar to recovery under FELA, but damages are reduced “in proportion to the amount of negligence attributable to” the employee, §53. Sorrell was awarded $1.5 million in damages by a jury; Norfolk objects that the jury instructions reflected a more lenient causation standard for railroad negligence than for employee contributory negligence. We conclude that the causation standard under FELA should be the same for both categories of negligence, and accordingly vacate the decision below and remand for further proceedings. I On November 1, 1999, while working for Norfolk in Indiana, Sorrell was driving a dump truck loaded with asphalt to be used to repair railroad crossings. While he was driving between crossings on a gravel road alongside the tracks, another Norfolk truck approached, driven by fellow employee Keith Woodin. The two men provided very different accounts of what happened next, but somehow Sorrell’s truck veered off the road and tipped on its side, injuring him. According to Sorrell’s testimony, Woodin forced Sorrell’s truck off the road; according to Woodin, Sorrell drove his truck into a ditch. On June 18, 2002, Sorrell filed suit against Norfolk in Missouri state court under FELA, alleging that Norfolk failed to provide him with a reasonably safe place to work and that its negligence caused his injuries. Norfolk responded that Sorrell’s own negligence caused the accident. Missouri purports to apply different standards of causation to railroad and employee contributory negligence in its approved jury instructions for FELA liability. The instructions direct a jury to find an employee contributorily negligent if the employee was negligent and his negligence “directly contributed to cause” the injury, Mo. Approved Jury Instr., Civ., No. 32.07 (6th ed. 2002), while allowing a finding of railroad negligence if the railroad was negligent and its negligence contributed “in whole or in part” to the injury, id., No. 24.01.[Footnote 1] When Sorrell proposed the Missouri approved instruction for employee contributory negligence, Norfolk objected on the ground that it provided a “different” and “much more exacting” standard for causation than that applicable with respect to the railroad’s negligence under the Missouri instructions. App. to Pet. for Cert. 28a–29a. The trial court overruled the objection. App. 9–10. After the jury returned a verdict in favor of Sorrell, Norfolk moved for a new trial, repeating its contention that the different standards were improper because FELA’s comparative fault system requires that the same causation standard apply to both categories of negligence. Id., at 20. The trial court denied the motion. The Missouri Court of Appeals affirmed, rejecting Norfolk’s contention that “the causation standard should be the same as to the plaintiff and the defendant.” App. to Pet. for Cert. 7a, judgt. order reported at 170 S. W. 3d 35 (2005) (per curiam). The court explained that Missouri procedural rules require that where an approved instruction exists, it must be given to the exclusion of other instructions. Ibid.; see Mo. Rule Civ. Proc. 70.02(b) (2006). After the Missouri Supreme Court denied discretionary review, App. to Pet. for Cert. 31a, Norfolk sought certiorari in this Court, asking whether the Missouri courts erred in determining that “the causation standard for employee contributory negligence under [FELA] differs from the causation standard for railroad negligence.” Pet. for Cert. i. Norfolk stated that Missouri was the only jurisdiction to apply different standards, and that this conflicted with several federal court of appeals decisions insisting on a single standard of causation for both railroad and employee negligence. See, e.g., Page v. St. Louis Southwestern R. Co., 349 F. 2d 820, 823 (CA5 1965) (“[T]he better rule is one of a single standard”); Ganotis v. New York Central R. Co., 342 F. 2d 767, 768–769 (CA6 1965) (per curiam) (“We do not believe that [FELA] intended to make a distinction between proximate cause when considered in connection with the carrier’s negligence and proximate cause when considered in connection with the employee’s contributory negligence”). In response, Sorrell did not dispute that Missouri courts apply “different causation standards … to plaintiff’s and defendant’s negligence in FELA actions: The defendant is subject to a more relaxed causation standard, but the plaintiff is subject only to the traditional common-law standard.” Brief in Opposition 2. We granted certiorari. 547 U. S. __ (2006). In briefing and argument before this Court, Norfolk has attempted to expand the question presented to encompass what the standard of causation under FELA should be, not simply whether the standard should be the same for railroad negligence and employee contributory negligence. In particular, Norfolk contends that the proximate cause standard reflected in the Missouri instruction for employee contributory negligence should apply to the railroad’s negligence as well. Sorrell raises both a substantive and procedural objection in response. Substantively, he argues that this Court departed from a proximate cause standard for railroad negligence under FELA in Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957). There we stated: “Under [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. . . . . . “[F]or practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.” Id., at 506, 508. Sorrell argues that these passages from Rogers have been interpreted to mean that a plaintiff’s burden of proof on the question whether the railroad’s negligence caused his injury is less onerous than the proximate cause standard prevailing at common law, citing cases such as Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 542–543 (1994); Holbrook v. Norfolk Southern R. Co., 414 F. 3d 739, 741–742 (CA7 2005); Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F. 3d 432, 436 (CA4 1999); and Summers v. Missouri Pacific R. Co., 132 F. 3d 599, 606–607 (CA10 1997). Norfolk counters that Rogers did not alter the established common-law rule of proximate cause, but rather simply rejected a flawed and unduly stringent version of the rule, the so-called “sole proximate cause” test. According to Norfolk, while most courts of appeals may have read Rogers as Sorrell does, several state supreme courts disagree, see, e.g., Chapman v. Union Pacific R. Co., 237 Neb. 617, 626–629, 467 N. W. 2d 388, 395–396 (1991); Marazzato v. Burlington Northern R. Co., 249 Mont. 487, 490–491, 817 P. 2d 672, 674 (1991), and “there is a deep conflict of authority on precisely that issue.” Reply Brief for Petitioner 20, n. 10. Sorrell’s procedural objection is that we did not grant certiorari to determine the proper standard of causation for railroad negligence under FELA, but rather to decide whether different standards for railroad and employee negligence were permissible under the Act. What is more, Norfolk is not only enlarging the question presented, but taking a position on that enlarged question that is contrary to the position it litigated below. In the Missouri courts, Norfolk argued that Missouri applies different standards, and that the less rigorous standard applied to railroad negligence should also apply to employee contributory negligence. Thus, Norfolk did not object below on causation grounds to the railroad liability instruction, but only to the employee contributory negligence instruction. App. 9–10. Now Norfolk wants to argue the opposite—that the disparity in the standards should be resolved by applying the more rigorous contributory negligence standard to the railroad’s negligence as well. We agree with Sorrell that we should stick to the question on which certiorari was sought and granted. We are typically reluctant to permit parties to smuggle additional questions into a case before us after the grant of certiorari. See Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 31–34 (1993) (per curiam). Although Norfolk is doubtless correct that we could consider the question of what standard applies as anterior to the question whether the standards may differ, the issue of the substantive content of the causation standard is significant enough that we prefer not to address it when it has not been fully presented. We also agree with Sorrell that it would be unfair at this point to allow Norfolk to switch gears and seek a ruling from us that the standard should be proximate cause across the board. What Norfolk did argue throughout is that the instructions, when given together, impermissibly created different standards of causation. It chose to present in its petition for certiorari the more limited question whether the courts below erred in applying standards that differ. That is the question on which we granted certiorari and the one we decide today. II In response to mounting concern about the number and severity of railroad employees’ injuries, Congress in 1908 enacted FELA to provide a compensation scheme for railroad workplace injuries, pre-empting state tort remedies. Second Employers’ Liability Cases, 223 U. S. 1, 53–55 (1912). Unlike a typical workers’ compensation scheme, which provides relief without regard to fault, Section 1 of FELA provides a statutory cause of action sounding in negligence: “[E]very common carrier by railroad … shall be liable in damages to any person suffering injury while he is employed by such carrier … for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier … .” 45 U. S. C. §51. FELA provides for concurrent jurisdiction of the state and federal courts, §56, although substantively FELA actions are governed by federal law. Chesapeake & Ohio R. Co. v. Stapleton, 279 U. S. 587, 590 (1929). Absent express language to the contrary, the elements of a FELA claim are determined by reference to the common law. Urie v. Thompson, 337 U. S. 163, 182 (1949). One notable deviation from the common law is the abolition of the railroad’s common-law defenses of assumption of the risk, §54; Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 58 (1943), and, at issue in this case, contributory negligence, §53. At common law, of course, a plaintiff ’s contributory negligence operated as an absolute bar to relief. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §65, pp. 461–462 (5th ed. 1984) (hereinafter Prosser & Keeton); 1 D. Dobbs, Law of Torts §199, p. 494 (2001) (hereinafter Dobbs). Under Section 3 of FELA, however, an employee’s negligence does not bar relief but instead diminishes recovery in proportion to his fault: “[In all actions under FELA], the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee… .” 45 U. S. C. §53. Both parties agree that at common law the causation standards for negligence and contributory negligence were the same. Brief for Respondent 40–41; Tr. of Oral Arg. 46–48. As explained in the Second Restatement of Torts: “The rules which determine the causal relation between the plaintiff’s negligent conduct and the harm resulting to him are the same as those determining the causal relation between the defendant’s negligent conduct and resulting harm to others.” §465(2), p. 510 (1964). See also Prosser & Keeton §65, at 456; Dobbs §199, at 497 (“The same rules of proximate cause that apply on the issue of negligence also apply on the issue of contributory negligence” (footnote omitted)). This was the prevailing view when FELA was enacted in 1908. See 1 T. Shearman & A. Redfield, A Treatise on the Law of Negligence §94, pp. 143–144 (5th ed. 1898) (“The plaintiff ’s fault … must be a proximate cause, in the same sense in which the defendant’s negligence must have been a proximate cause in order to give any right of action”). Missouri’s practice of applying different causation standards in FELA actions is apparently unique. Norfolk claims that Missouri is the only jurisdiction to allow such a disparity, and Sorrell has not identified another.[Footnote 2] It is of course possible that everyone is out of step except Missouri, but we find no basis for concluding that Congress in FELA meant to allow disparate causation standards. We have explained that “although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis.” Gottshall, 512 U. S., at 544. In Gottshall we “cataloged” the ways in which FELA expressly departed from the common law: it abolished the fellow servant rule, rejected contributory negligence in favor of comparative negligence, prohibited employers from contracting around the Act, and abolished the assumption of risk defense. Norfolk & Western R. Co. v. Ayers, 538 U. S. 135, 145 (2003); Gottshall, supra, at 542–543. The fact that the common law applied the same causation standard to defendant and plaintiff negligence, and FELA did not expressly depart from that approach, is strong evidence against Missouri’s disparate standards. See also Monessen Southwestern R. Co. v. Morgan, 486 U. S. 330, 337–338 (1988) (holding that, because FELA abrogated some common-law rules explicitly but did not address “the equally well-established doctrine barring the recovery of prejudgment interest, … we are unpersuaded that Congress intended to abrogate that doctrine sub silentio”). Departing from the common-law practice of applying a single standard of causation for negligence and contributory negligence would have been a peculiar approach for Congress to take in FELA. As one court explained, under FELA, “[a]s to both attack or defense, there are two common elements, (1) negligence, i.e., the standard of care, and (2) causation, i.e., the relation of the negligence to the injury. So far as negligence is concerned, that standard is the same—ordinary prudence—for both Employee and Railroad alike. Unless a contrary result is imperative, it is, at best, unfortunate if two standards of causation are used.” Page, 349 F. 2d, at 823. As a practical matter, it is difficult to reduce damages “in proportion” to the employee’s negligence if the relevance of each party’s negligence to the injury is measured by a different standard of causation. Norfolk argues, persuasively we think, that it is far simpler for a jury to conduct the apportionment FELA mandates if the jury compares like with like—apples to apples. Other courts to address this question concur. See Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F. 3d 1269, 1282–1283 (CA3 1995); Caplinger v. Northern Pacific Terminal, 244 Ore. 289, 290–292, 418 P. 2d 34, 35–36 (1966) (in banc); Page, supra, at 822–823; Ganotis, 342 F. 2d, at 768–769.[Footnote 3] The most thoughtful treatment comes in Page, in which the Fifth Circuit stated: “[W]e think that from the very nature of comparative negligence, the standard of causation should be single… . Use of the terms ‘in proportion to’ and ‘negligence attributable to’ the injured worker inescapably calls for a comparison… . [I]t is obvious that for a system of comparative fault to work, the basis of comparison has to be the same.” 349 F. 2d, at 824. See also Restatement (Third) of Torts: Apportionment of Liability §3, Reporters’ Note, p. 37, Comment a (1999) (“[C]omparative responsibility is difficult to administer when different rules govern different parts of the same lawsuit”). We appreciate that there may well be reason to “doubt that such casuistries have any practical significance [for] the jury,” Page, supra, at 823, but it seems to us that Missouri’s idiosyncratic approach of applying different standards of causation unduly muddies what may, to a jury, be already murky waters. Sorrell argues that FELA does contain an explicit statutory alteration from the common-law rule: Section 1 of FELA—addressing railroad negligence—uses the language “in whole or in part,” 45 U. S. C. §51, while Section 3—covering employee contributory negligence—does not, §53. This, Sorrell contends, evinces an intent to depart from the common-law causation standard with respect to railroad negligence under Section 1, but not with respect to any employee contributory negligence under Section 3. The inclusion of this language in one section and not the other does not alone justify a departure from the common-law practice of applying a single standard of causation. It would have made little sense to include the “in whole or in part” language in Section 3, because if the employee’s contributory negligence contributed “in whole” to his injury, there would be no recovery against the railroad in the first place. The language made sense in Section 1, however, to make clear that there could be recovery against the railroad even if it were only partially negligent. Even if the language in Section 1 is understood to address the standard of causation, and not simply to reflect the fact that contributory negligence is no longer a complete bar to recovery, there is no reason to read the statute as a whole to encompass different causation standards. Section 3 simply does not address causation. On the question whether a different standard of causation applies as between the two parties, the statutory text is silent. Finally, in urging that a higher standard of causation for plaintiff contributory negligence is acceptable, Sorrell invokes FELA’s remedial purpose and our history of liberal construction. We are not persuaded. FELA was indeed enacted to benefit railroad employees, as the express abrogation of such common-law defenses as assumption of risk, the contributory negligence bar, and the fellow servant rule make clear. See Ayers, 538 U. S., at 145. It does not follow, however, that this remedial purpose requires us to interpret every uncertainty in the Act in favor of employees. See Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primarily objective must be the law”). FELA’s text does not support the proposition that Congress meant to take the unusual step of applying different causation standards in a comparative negligence regime, and the statute’s remedial purpose cannot compensate for the lack of a statutory basis. We conclude that FELA does not abrogate the common-law approach, and that the same standard of causation applies to railroad negligence under Section 1 as to plaintiff contributory negligence under Section 3. Sorrell does not dispute that Missouri applies different standards, see Brief for Respondent 40–41; see also Mo. Approved Jury Instr., Civ., No. 24.01, Committee’s Comment (1978 New), and accordingly we vacate the judgment below and remand the case for further proceedings. The question presented in this case is a narrow one, and we see no need to do more than answer that question in today’s decision. As a review of FELA model instructions indicates, n. 2, supra, there are a variety of ways to instruct a jury to apply the same causation standard to railroad negligence and employee contributory negligence. Missouri has the same flexibility as the other States in deciding how to do so, so long as it now joins them in applying a single standard. Sorrell maintains that even if the instructions improperly contained different causation standards we should nonetheless affirm because any error was harmless. He argues that the evidence of his negligence presented at trial, if credited by the jury, could only have been a “direct” cause, so that even with revised instructions the result would not change. This argument is better addressed by the Missouri Court of Appeals, and we leave it to that court on remand to determine whether a new trial is required in this case. The judgment of the Missouri Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Missouri in the past directed a jury to find a railroad liable if the railroad’s negligence “directly resulted in whole or in part in injury to plaintiff.” Mo. Approved Jury Instr., Civ., No. 24.01 (1964). This language persisted until 1978, when the instruction was modified to its present version. Ibid. (2d ed. 1969, Supp. 1980). The commentary explains that the word “direct” was excised because, under FELA, “the traditional doctrine of proximate (direct) cause is not applicable.” Id., No. 24.01, p. 187 (Committee’s Comment (1978 new)). Cf. Leake v. Burlington Northern R. Co., 892 S. W. 2d 359, 364–365 (Mo. App. 1995). The contributory negligence instruction, on the other hand, has remained unchanged. Mo. Approved Jury Instr., Civ., No. 32.07(B) (6th ed. 2002). Footnote 2 A review of model and pattern jury instructions in FELA actions reveals a variety of approaches. Some jurisdictions recommend using the “in whole or in part” or “in any part” formulation for both railroad negligence and plaintiff contributory negligence, by using the same language in the respective pattern instructions, including a third instruction that the same causation standard is applied to both parties, or including in commentary an admonition to that effect. See, e.g., 5 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions—Civil ¶¶89.02–89.03, pp. 89–7, 89–44, 89–53 (3d ed. 2006); 4 Fla. Forms of Jury Instruction §§161.02, 161.47, 161.60 (2006); Cal. Jury Instr., Civ., Nos. 11.07, 11.14, and Comment (2005); 3 Ill. Forms of Jury Instruction §§91.02[1], 91.50[1] (2005); 3 N. M. Rules Ann., Uniform Jury Instr., Civ., Nos. 13–905, 13–909, 13–915 (2004); Model Utah Jury Instr., Civ., Nos. 14.4, 14.7, 14.8 (1993 ed.); Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit §7.03, and n. 7 (2005); Eleventh Circuit Pattern Jury Instructions (Civil Cases) §7.1 (2005). Other jurisdictions use the statutory formulation (“in whole or in part”) for railroad negligence, and do not contain a pattern instruction for contributory negligence. See, e.g., Mich. Non-Standard Jury Instr., Civ., §12:53 (Supp. 2006 ). Both Alabama and Virginia use formulations containing language of both proximate cause and in whole or in part. 1 Ala. Pattern Jury Instr., Civ., Nos. 17.01, 17.05 (2d ed. 1993) (railroad negligence “proximately caused, in whole or in part”; plaintiff contributory negligence “proximately contributed to cause”); 1 Va. Jury Instructions §§40.01, 40.02 (3d ed. 1998) (railroad negligence “in whole or in part was the proximate cause of or proximately contributed to cause,” plaintiff negligence “contributed to cause”). In New York, the pattern instructions provide that railroad causation is measured by whether the injury results “in whole or in part” from the railroad’s negligence, and a plaintiff’s contributory negligence diminishes recovery if it “contributed to caus[e]” the injury. 1B N. Y. Pattern Jury Instr., Civ., No. 2:180 (3d ed. 2006). Montana provides only a general FELA causation instruction. Mont. Pattern Instr., Civ., No. 6.05 (1997) (“[A]n act or a failure to act is the cause of an injury if it plays a part, no matter how small, in bringing about the injury”). Kansas has codified instructions similar to Missouri’s, Kan. Pattern Instr. 3d, Civ., No. 132.01 (2005) (railroad liable when injury “results in whole or in part” from railroad’s negligence); id., No. 132.20 (contributory negligence is negligence on the part of the plaintiff that “contributes as a direct cause” of the injury), but the commentary to these instructions cites cases and instructions applying a single standard, id., No. 132.01, and Comment, and in practice the Kansas courts have used the language of in whole or in part for both parties’ negligence. See Merando v. Atchison, T. & S. F. R. Co., 232 Kan. 404, 406–409, 656 P. 2d 154, 157–158 (1982). Footnote 3 See also Bunting v. Sun Co., Inc., 434 Pa. Super. 404, 409–411, 643 A. 2d 1085, 1088 (1994); Hickox v. Seaboard System R. Co., 183 Ga. App. 330, 331–332, 358 S. E. 2d 889, 891–892 (1987). An exception is a Texas case that no court has since cited for the proposition, Missouri-Kansas-Texas R. Co. v. H. T. Shelton, 383 S. W. 2d 842, 844–846 (Civ. App. 1964), and that the Texas model jury instructions, which instruct the jury to determine plaintiff or railroad negligence using a single “in whole or in part” causation standard, at least implicitly disavow. See 10 West’s Texas Forms: Civil Trial and Appellate Practice §23.34, p. 27 (3d ed. 2000) (“Did the negligence, if any, of the [plaintiff or railroad] cause, in whole or in part, the occurrence in question?”).
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550.US.511
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After his discharge from employment with former Senator Dayton, appellee Hanson sued appellant, the Senator’s office (Office), invoking the District Court’s jurisdiction under the Congressional Accountability Act of 1995 (Act). The court denied a motion to dismiss based on a claim of immunity under the Constitution’s Speech or Debate Clause, and the D. C. Circuit affirmed. The Office then sought to appeal under §412 of the Act, which authorizes review in this Court of “any … judgment … upon the constitutionality of any provision” of the Act. Held: This Court lacks jurisdiction under §412 because neither the dismissal denial nor the D. C. Circuit’s affirmance can fairly be characterized as a ruling “upon the constitutionality” of any Act provision. The District Court’s order does not state any grounds for decision, so it cannot be characterized as a constitutional holding. Moreover, neither the Court of Appeals’ rejection of the Office’s argument that forcing the Senator to defend against Hanson’s allegations would necessarily contravene the Speech or Debate Clause, nor that court’s leaving open the possibility that the Clause may limit the proceedings’ scope in some respects, qualifies as a ruling on the Act’s validity. The Office’s argument that the appeals court’s holding amounts to a ruling that the Act is constitutional “as applied” cannot be reconciled with §413’s declaration that the Act’s authorization to sue “shall not constitute a waiver of … the privileges of any Senator … under [the Clause.]” Nor do any special circumstances justify exercise of this Court’s discretionary certiorari jurisdiction, the D. C. Circuit having abandoned an earlier decision that was in conflict with another Circuit on the Clause’s application to suits challenging a congressional Member’s personnel decisions. Pp. 2–4. 459 F. 3d 1, appeal dismissed; certiorari denied. Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Roberts, C. J., who took no part in the consideration or decision of the case.
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Prior to January 3, 2007, Mark Dayton represented the State of Minnesota in the United States Senate. Appellee, Brad Hanson, was employed in the Senator’s Ft. Snelling office prior to his discharge by the Senator, which he alleges occurred on July 3, 2002. Hanson brought this action for damages against appellant, the Senator’s office (Office), invoking the District Court’s jurisdiction under the Congressional Accountability Act of 1995 (Act), 109 Stat. 3, as amended, 2 U. S. C. §1301 et seq. (2000 ed. and Supp. IV), and alleging violations of three other federal statutes.[Footnote 1] The District Court denied appellant’s motion to dismiss the complaint based on a claim of immunity under the Speech or Debate Clause of the Constitution.[Footnote 2] The Court of Appeals affirmed, Fields v. Office of Eddie Bernice Johnson, Employing Office, United States Congress, 459 F. 3d 1 (CADC 2006), the Office invoked our appellate jurisdiction under §412 of the Act, 2 U. S. C. §1412, and we postponed consideration of jurisdiction pending hearing the case on the merits, 549 U. S. ___ (2007). Because we do not have jurisdiction under §412, we dismiss the appeal. Treating appellant’s jurisdictional statement as a petition for a writ of certiorari, we deny the petition. Under §412 of the Act, direct review in this Court is available “from any interlocutory or final judgment, decree, or order of a court upon the constitutionality of any provision” of the statute.[Footnote 3] Neither the order of the District Court denying appellant’s motion to dismiss nor the judgment of the Court of Appeals affirming that order can fairly be characterized as a ruling “upon the constitutionality” of any provision of the Act. The District Court’s minute order denying the motion to dismiss does not state any grounds for decision. App. to Pet. for Cert. 59a. Both parties agree that that order cannot, therefore, be characterized as a constitutional holding.[Footnote 4] The Court of Appeals’ opinion rejects appellant’s argument that forcing Senator Dayton to defend against the allegations in this case would necessarily contravene the Speech or Debate Clause, although it leaves open the possibility that the Speech or Debate Clause may limit the scope of the proceedings in some respects. Neither of those holdings qualifies as a ruling on the validity of the Act itself. The Office argues that the Court of Appeals’ holding amounts to a ruling that the Act is constitutional “as applied.” According to the Office, an “as applied” constitutional holding of that sort satisfies the jurisdictional requirements of §412. We find this reading difficult to reconcile with the statutory scheme. Section 413 of the Act provides that “[t]he authorization to bring judicial proceedings under [the Act] shall not constitute a waiver of sovereign immunity for any other purpose, or of the privileges of any Senator or Member of the House of Representatives under [the Speech or Debate Clause] of the Constitution.” 2 U. S. C. §1413. This provision demonstrates that Congress did not intend the Act to be interpreted to permit suits that would otherwise be prohibited under the Speech or Debate Clause. Consequently, a court’s determination that jurisdiction attaches despite a claim of Speech or Debate Clause immunity is best read as a ruling on the scope of the Act, not its constitutionality. This reading is faithful, moreover, to our established practice of interpreting statutes to avoid constitutional difficulties.[Footnote 5] See Clark v. Martinez, 543 U. S. 371, 381–382 (2005). The provision for appellate review is best understood as responding to a congressional concern that if a provision of the statute is declared invalid there is an interest in prompt adjudication by this Court. To extend that review to instances in which the statute itself has not been called into question, giving litigants under the Act preference over litigants in other cases, does not accord with that rationale. This is also consistent with our cases holding that “statutes authorizing appeals are to be strictly construed.” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 43 (1983); see also Fornaris v. Ridge Tool Co., 400 U. S. 41, 42, n. 1 (1970) (per curiam). Nor are there special circumstances that justify the exercise of our discretionary certiorari jurisdiction to review the Court of Appeals’ affirmance of the interlocutory order entered by the District Court. Having abandoned its decision in Browning v. Clerk, U. S. House of Representatives, 789 F. 2d 923 (1986), the D. C. Circuit is no longer in obvious conflict with any other Circuit on the application of the Speech or Debate Clause to suits challenging the personnel decisions of Members of Congress. Compare 459 F. 3d 1 (case below), with Bastien v. Office of Senator Ben Nighthorse Campbell, 390 F. 3d 1301 (CA10 2004). Accordingly, the appeal is dismissed for want of jurisdiction and certiorari is denied. We express no opinion on the merits, nor do we decide whether this action became moot upon the expiration of Senator Dayton’s term in office. It is so ordered. The Chief Justice took no part in the consideration or decision of this case. Footnote 1 Appellee alleged violations of the Family and Medical Leave Act of 1993, 107 Stat. 6, as amended, 29 U. S. C. §2601 et seq. (2000 ed. and Supp. IV), the Americans with Disabilities Act of 1990, 104 Stat. 337, 42 U. S. C. §12101 et seq. (2000 ed. and Supp. IV), and the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq. (2000 ed. and Supp. IV). Footnote 2 “[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place.” Art. I, §6, cl. 1. Footnote 3 Section 412 reads in full: “Expedited review of certain appeals “(a) In general “An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order of a court upon the constitutionality of any provision of this chapter. “(b) Jurisdiction “The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal referred to in subsection (a) of this section, advance the appeal on the docket, and expedite the appeal to the greatest extent possible.” 2 U. S. C. §1412. Footnote 4 Had the District Court’s order qualified as a ruling “upon the constitutionality” of a provision of the Act, the Court of Appeals’ jurisdiction to hear the appeal would have been called into serious doubt. See 28 U. S. C. §1291 (granting jurisdiction to the courts of appeals from final decisions of federal district courts “except where a direct review may be had in the Supreme Court”). Footnote 5 Nor does this reading make a dead letter out of §412’s limitation of appellate review in this Court to constitutional rulings. The possibility remains that provisions of the Act could be challenged on constitutional grounds unrelated to the Speech or Debate Clause.
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549.US.225
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The federal statute commonly known as the Westfall Act accords federal employees absolute immunity from tort claims arising out of acts undertaken in the course of their official duties, 28 U. S. C. §2679(b)(1), and empowers the Attorney General to certify that a federal employee sued for wrongful or negligent conduct “was acting within the scope of his office or employment at the time of the incident out of which the claim arose,” §2679(d)(1), (2). Upon such certification, the United States is substituted as defendant in place of the employee, and the action is thereafter governed by the Federal Tort Claims Act. If the action commenced in state court, the Westfall Act calls for its removal to a federal district court, and renders the Attorney General’s certification “conclusiv[e] … for purposes of removal.” §2679(d)(2). Plaintiff-petitioner Pat Osborn sued federal employee Barry Haley in state court. Osborn alleged that Haley tortiously interfered with her employment with a private contractor, that he conspired to cause her wrongful discharge, and that his efforts to bring about her discharge were outside the scope of his employment. The United States Attorney, serving as the Attorney General’s delegate, certified that Haley was acting within the scope of his employment at the time of the conduct alleged in Osborn’s complaint. She thereupon removed the case to a federal district court, where she asserted that the alleged wrongdoing never occurred. The District Court, relying in Osborn’s allegations, entered an order that rejected the Westfall Act certification, denied the Government’s motion to substitute the United States as defendant in Haley’s place, and remanded the case to the state court. The Sixth Circuit vacated the District Court’s order, holding that a Westfall Act certification is not improper simply because the United States denies the occurrence of the incident on which the plaintiff centrally relies. Based on §2679(d)(2)’s direction that certification is “conclusiv[e] … for purposes of removal,” the Court of Appeals instructed the District Court to retain jurisdiction over the case. Held: 1. The Attorney General’s certification is conclusive for purposes of removal, i.e., once certification and removal are effected, exclusive competence to adjudicate the case resides in the federal court, and that court may not remand the suit to the state court. Pp. 9–17. (a) The Sixth Circuit had jurisdiction to review the order rejecting the Attorney General’s certification and denying substitution of the United States as defendant. Under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, the District Court’s ruling, which effectively denied Haley Westfall Act protection, qualifies as a reviewable final decision under 28 U. S. C. §1291. Meeting Cohen’s three criteria, the District Court’s denial of certification and substitution conclusively decided a contested issue, the issue decided is important and separate from the merits of the action, and the District Court’s disposition would be effectively unreviewable later in the litigation. 337 U. S., at 546. Pp. 9–11. (b) The Sixth Circuit also had jurisdiction to review the District Court’s remand order. Pp. 11–17. (1) The Sixth Circuit had jurisdiction to review the District Court’s remand order, notwithstanding 28 U. S. C. §1447(d), which states that “[a]n order remanding a case to the State court … is not reviewable on appeal or otherwise … .” This Court held, in Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, that §1447(c) confines §1447(d)’s scope. Section §1447(c) provides that a case must be remanded “if … it appears that the district court lacks subject matter jurisdiction.” Under Thermtron, “only remand orders issued under §1447(c) and invoking the [mandatory ground] specified therein … are immune from review” under §1447(d). Id., at 346. To determine whether Thermtron’s reasoning controls here, the Westfall Act’s design, particularly its prescriptions regarding the removal and remand of actions filed in state court, must be examined. When the Attorney General certifies that a federal employee named defendant in a state-court tort action was acting within the scope of his or her employment at the time in question, the action “shall be removed” to federal court and the United States must be substituted as the defendant. §2679(d)(2). Of prime importance here, §2679(d)(2) concludes with the command that the “certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” (Emphasis added.) This directive markedly differs from Congress’ instruction for cases in which the Attorney General “refuse[s] to certify scope of office or employment.” §2679(d)(3). In that event, the defendant-employee may petition the court in which the action is instituted to make the scope-of-employment certification. If the employee so petitions in an action filed in state court, the Attorney General may, at his discretion, remove the action to federal court. If removal has occurred, and thereafter “the district court determines that the employee was not acting within the scope of his office or employment, the action … shall be remanded to the State court.” Ibid. (emphasis added). The Act’s distinction between removed cases in which the Attorney General issues a scope-of-employment certification and those in which he does not leads to the conclusion that Congress gave district courts no authority to return cases to state courts on the ground that the Attorney General’s certification was unwarranted. Section 2679(d)(2) does not preclude a district court from resubstituting the federal official as defendant for purposes of trial if the court determines, postremoval, that the Attorney General’s scope-of-employment certification was incorrect. For purposes of establishing a forum for adjudication, however, §2679(d)(2) renders the Attorney General’s certification dispositive. Were it open to a district court to remand a removed action on the ground that the Attorney General’s certification was erroneous, §2679(d)(2)’s final instruction would be weightless. Congress adopted the “conclusiv[e] … for the purposes of removal” language to “foreclose needless shuttling of a case from one court to another,” Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 433, n. 10. The provision assures that “once a state tort action has been removed to a federal court after a certification by the Attorney General, it may never be remanded to the state system.” Id., at 440 (Souter, J., dissenting). Thermtron held that §1447(d) must be read together with §1447(c). There is stronger cause to hold that §1447(c) and (d) must be read together with the later enacted §2679(d)(2). Both §1447(d) and §2679(d)(2) are antishuttling provisions that aim to prevent “prolonged litigation of questions of jurisdiction of the district court to which the cause is removed.” United States v. Rice, 327 U. S. 742, 751. Once the Attorney General certifies scope of employment, triggering removal of the case to a federal forum, §2679(d)(2) renders the federal court exclusively competent and categorically precludes a remand to the state court. By declaring certification conclusive as to the federal forum’s jurisdiction, Congress has barred a district court from passing the case back to state court based on the court’s disagreement with the Attorney General’s scope-of-employment determination. Of the two antishuttling commands, §1447(d) and §2679(d)(2), only one can prevail and the Court holds that the latter controls. Tailor-made for Westfall Act cases, §2679(d)(2) “conclusively” determines that the action shall be adjudicated in the federal forum, and may not be returned to the state system. Pp. 11–16. (2) The Westfall Act’s command that a district court retain jurisdiction over a case removed pursuant to §2679(d)(2) does not run afoul of Article III. An Article III question could arise in this case only if, after full consideration, the District Court determined that Haley engaged in tortious conduct outside the scope of his employment. Because, at that point, little would be left to adjudicate as to his liability, and because a significant federal question (whether he has Westfall Act immunity) would have been raised at the outset, the case would “aris[e] under” federal law as that term is used in Article III. Even if only state-law claims remained after resolution of the federal question, the District Court would have authority, consistent with Article III, to retain jurisdiction. Pp. 16–17. 2. Westfall Act certification is proper when a federal officer charged with misconduct asserts, and the Attorney General concludes, that the incident or episode in suit never occurred. Pp. 17–24. (a) Because the Westfall Act’s purpose is to shield covered employees not only from liability but from suit, it is appropriate to afford protection to an employee on duty at the time and place of an “incident” alleged in a complaint who denies that the incident occurred. Just as the Government’s certification that an employee “was acting within the scope of his employment” is subject to threshold judicial review, Lamagno, 515 U. S., at 434, so a complaint’s charge of conduct outside the scope of employment, when contested, warrants immediate judicial investigation. Otherwise, a federal employee would be stripped of suit immunity not by what the court finds, but by what the complaint alleges. This position is supported by Willingham v. Morgan, 395 U. S. 402, which concerned 28 U. S. C. §1442, the federal officer removal statute. Section 1442 allows a federal officer to remove a civil action from state court if the officer is “sued in an official or individual capacity for any act under color of such office.” The Court held in Willingham that the language of §1442 is “broad enough to cover all cases where federal officers can raise a colorable defense arising out of the duty to enforce federal law.” 395 U. S., at 406–407. There is no reason to conclude that the Attorney General’s ability to remove a suit to federal court under §2679(d)(2), unlike a federal officer’s ability to remove under §1442, should be controlled by the plaintiff’s allegations. Pp. 19–21. (b) Tugging against this reading is a “who decides” concern. If the Westfall Act certification must be respected unless and until the District Court determines that Haley, in fact, engaged in conduct beyond the scope of his employment, then Osborn may be denied a jury trial. Upon the Attorney General’s certification, however, the action is “deemed to be … brought against the United States,” §2679(d)(2), and the Seventh Amendment, which preserves the right to a jury trial in common-law suits, does not apply to proceedings against the sovereign. Thus, at the time the district court reviews the Attorney General’s certification, the plaintiff has no right to a jury trial. The Westfall Act’s core purpose—to relieve covered employees from the cost and effort of defending the lawsuit and to place those burdens on the Government—also bears on the appropriate trier of any facts essential to certification. Immunity-related issues should be decided at the earliest opportunity. See, e.g., Hunter v. Bryant, 502 U. S. 224, 228 (per curiam). Pp. 22–24. 422 F. 3d 359, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, and Alito, JJ., joined, in which Souter, J., joined except for Parts II–B and II–C, and in which Breyer, J., joined as to Parts I and II. Souter, J., and Breyer, J., filed opinions concurring in part and dissenting in part. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.
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The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties. See 28 U. S. C. §2679(b)(1). When a federal employee is sued for wrongful or negligent conduct, the Act empowers the Attorney General to certify that the employee “was acting within the scope of his office or employment at the time of the incident out of which the claim arose.” §2679(d)(1), (2). Upon the Attorney General’s certification, the employee is dismissed from the action, and the United States is substituted as defendant in place of the employee. The litigation is thereafter governed by the Federal Tort Claims Act (FTCA), 60 Stat. 842. If the action commenced in state court, the case is to be removed to a federal district court, and the certification remains “conclusiv[e] … for purposes of removal.” §2679(d)(2). In Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 420 (1995), we held that the Attorney General’s Westfall Act scope-of-employment certification is subject to judicial review. Today, we address three further questions regarding the Westfall Act’s operation: (1) Is Attorney General certification proper when a federal officer denies the occurrence of the tortious conduct alleged by the plaintiff; (2) does §2679(d)(2), by rendering the Attorney General’s certification “conclusiv[e] … for purposes of removal,” bar remand even if the federal court determines that the United States should not be substituted as defendant in place of the federal employee; and (3) does 28 U. S. C. §1447(d)’s bar on appellate review of remand orders override §2679(d)(2)’s direction that, for purposes of removal, the Attorney General’s certification is conclusive. The first two questions were advanced in the petition for certiorari; in our order granting review, we asked the parties to address the impact of §1447(d) on this case. Pat Osborn, plaintiff-petitioner in the civil action now before the Court, sued federal employee Barry Haley in a Kentucky state court. She alleged that Haley tortiously interfered with her employment with a private contractor and conspired to cause her wrongful discharge. Osborn further alleged that Haley’s efforts to bring about her discharge were outside the scope of his employment. The United States Attorney, serving as the Attorney General’s delegate, countered Osborn’s allegations by certifying that Haley “was acting within the scope of his employment … at the time of the conduct alleged in [Osborn’s] complaint.” App. to Brief in Opposition 23 (hereinafter Luber App.). Based on this certification, the case was removed to the United States District Court for the Western District of Kentucky, as §2679(d)(2) instructs. In the federal forum, the United States Attorney denied the tortious conduct Osborn attributed to Haley, asserting that the wrongdoing she alleged never occurred. Accepting Osborn’s allegations as true, the District Court entered an order that rejected the Attorney General’s Westfall Act certification, denied the Government’s motion to substitute the United States as defendant in place of Haley, and remanded the case to the state court. On appeal, the Sixth Circuit vacated the District Court’s order, and instructed that court to retain jurisdiction over the case. We affirm the Court of Appeals’ judgment. On the merits, we agree with the Sixth Circuit that the District Court, in denying substitution of the United States as defendant in lieu of Haley, misconstrued the Westfall Act. Substitution of the United States is not improper simply because the Attorney General’s certification rests on an understanding of the facts that differs from the plaintiff’s allegations. The United States, we hold, must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment. On the jurisdictional issues, we hold that the Attorney General’s certification is conclusive for purposes of removal, i.e., once certification and removal are effected, exclusive competence to adjudicate the case resides in the federal court, and that court may not remand the suit to the state court. We also hold that §1447(d)’s bar on appellate review of remand orders does not displace §2679(d)(2), which shields from remand an action removed pursuant to the Attorney General’s certification. I Petitioner Pat Osborn worked for Land Between the Lakes Association (LBLA), a private company that contracted with the United States Forest Service to provide staff for the Land Between the Lakes National Recreation Area in Kentucky.[Footnote 1] While employed by LBLA, Osborn applied for a trainee position with the Forest Service. Respondent Barry Haley, a Forest Service officer, was responsible for the Service’s hiring process. At a meeting with LBLA employees, Haley announced that he had hired someone else for the job Osborn sought. Osborn asked why Haley did not inform her before the meeting, and she made a joke at Haley’s expense. After the meeting, Osborn’s supervisor told her to apologize to Haley; she refused. A few weeks later, Osborn filed a complaint with the United States Department of Labor, asking the Department to investigate whether the Forest Service, in its hiring decision, had given appropriate consideration to the veterans’ preference points to which she was entitled. The Department’s investigator, Robert Kuenzli, after interviewing Haley, concluded that the hiring procedure had been handled correctly. Kuenzli so informed Osborn, who then asked him to close her complaint. On the same day LBLA’s executive director, respondent Gaye Luber, summoned Osborn and demanded that she apologize to Haley for “not being a good Forest Service partner.” Complaint ¶18, Luber App. 4. Osborn again refused. Two days later, she was fired. Osborn filed suit against Haley, Luber, and LBLA in a Kentucky state court. She alleged that Haley tortiously interfered with her employment relationship with LBLA and conspired to cause her wrongful discharge. Specifically, she charged that Haley maliciously induced Luber to fire her, and that Haley did so in retaliation for Osborn’s Department of Labor complaint requesting a veterans’ preference inquiry. Complaint ¶29, Luber App. 7. In response the local United States Attorney, invoking the Westfall Act, certified on behalf of the Attorney General that Haley “was acting within the scope of his employment with the U. S. Forest Service at the time of the conduct alleged in [Osborn’s] complaint.” Luber App. 23. As is customary, the certification stated no reasons for the determination.[Footnote 2] In the Westfall Act, Congress instructed: “Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” 28 U. S. C. §2679(d)(2) (emphasis added). Citing this provision, as well as the federal officer removal statute, §1442,[Footnote 3] the United States removed the case to the United States District Court for the Western District of Kentucky. The United States Attorney notified the District Court that the United States should be substituted for Haley as defendant, and filed a motion to dismiss on the ground that Osborn had not exhausted administrative remedies, as required by the FTCA. Osborn opposed the substitution and the motion to dismiss. She argued that Haley’s conduct was outside the scope of his employment, hence the Westfall Act afforded him no immunity. As support for her opposition, Osborn submitted a memorandum of understanding between the LBLA and the Forest Service, which cautioned Forest Service employees against involvement in LBLA employment decisions. Apparently under the impression that the United States, at that preliminary stage, did not dispute Osborn’s factual allegations, the District Court declined to conduct an evidentiary hearing. Under Kentucky law, the court observed, if Osborn’s allegations were true, Haley had acted outside the scope of his employment. In the District Court’s view the closeness in time of Osborn’s request for a Department of Labor investigation, Kuenzli’s call to Haley, and Luber’s demand for an apology justified an inference that Haley interfered with Osborn’s employment in violation of the LBLA-Forest Service memorandum of understanding. So reasoning, the District Court overruled the Westfall Act certification and denied substitution. Under this ruling, the United States was no longer before the court. Furthermore, the parties were not of diverse citizenship and no federal law was at issue. The District Court therefore held that it lacked subject-matter jurisdiction over the case.[Footnote 4] Invoking §1447(c),[Footnote 5] the court concluded that the case must be remanded to the state court. The United States moved for reconsideration, urging that, contrary to the District Court’s impression, the Government did contest Osborn’s factual allegations. Recalling that it had denied Osborn’s allegations in its answer to her complaint, the United States submitted sworn declarations from Haley and Luber. Haley’s stated that he was not in communication with Luber between the time of Kuenzli’s investigation and Osborn’s firing. Luber’s declaration stated that Osborn’s request for an investigation regarding her veterans’ preference points could not have had any bearing on Osborn’s termination, for Luber was unaware of the request at the relevant time. Absent contrary evidence, the Government maintained, these declarations sufficed to support the certification and the continuance of the United States as defendant in place of Haley. In the alternative, the Government sought discovery.[Footnote 6] The District Court denied the Government’s reconsideration motion. The Haley and Luber declarations, the court said, clarified that the controversy centered on whether there had been any communication between Haley and Luber influencing Luber’s decision to fire Osborn. The Westfall Act would have shielded Haley, the Court suggested, had the United States admitted a Haley-Luber communication but defended its content as within the scope of Haley’s employment. Westfall Act certification was improper, the court concluded, because the United States did not admit, but instead denied, the occurrence of the event central to proof of Osborn’s claim. The District Court acknowledged disagreement among the Circuits on the availability of a Westfall Act certification when the United States “den[ies] the occurrence of the basic incident charged.” Wood v. United States, 995 F. 2d 1122, 1124 (CA1 1993) (en banc). Compare ibid. and McHugh v. University of Vermont, 966 F. 2d 67, 74–75 (CA2 1992) (prohibiting incident-denying certifications), with Heuton v. Anderson, 75 F. 3d 357, 360 (CA8 1996); Kimbro v. Velten, 30 F. 3d 1501, 1508 (CADC 1994); and Melo v. Hafer, 13 F. 3d 736, 746–747 (CA3 1994) (allowing incident-denying certifications). Choosing to follow the First Circuit’s opinion in Wood, the District Court adhered to its prior ruling that the Westfall Act certification in this case was invalid. On appeal, the Sixth Circuit vacated the District Court’s order denying certification and substitution. 422 F. 3d 359, 365 (2005). The Court of Appeals, in accord with Heuton, Kimbro, and Melo, held that a Westfall Act certification is not improper simply because the United States denies the occurrence of the incident on which the plaintiff centrally relies. 422 F. 3d, at 364. Rather, the court held, where “the Attorney General’s certification is based on a different understanding of the facts than is reflected in the complaint, including a denial of the harm-causing incident, the district court must resolve the factual dispute.” Ibid. (quoting Melo, 13 F. 3d, at 747). The Sixth Circuit also vacated the District Court’s order remanding the case to the state court. Section 2679(d)(2), the Court of Appeals stressed, instructs that the “certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” The court read that instruction to proscribe shuttling cases back to state courts and, instead, to require district court adjudication of the controversy even when a Westfall Act certification is rejected and, correspondingly, substitution of the United States as defendant is denied. 422 F. 3d, at 365. On that issue too, the Court of Appeals noted a division among the Circuits. Compare Borneman v. United States, 213 F. 3d 819, 826 (CA4 2000); Garcia v. United States, 88 F. 3d 318, 325–327 (CA5 1996); and Aliota v. Graham, 984 F. 2d 1350, 1356 (CA3 1993) (holding that a district court lacks authority to remand a case removed under §2679(d)(2)), with Haddon v. United States, 68 F. 3d 1420, 1427 (CADC 1995); and Nasuti v. Scannell, 906 F. 2d 802, 814, n. 17 (CA1 1990) (holding remand proper when district court rejects the Attorney General’s certification). We granted certiorari. 547 U. S. __ (2006). II We consider first the Court of Appeals’ jurisdiction to review the District Court’s disposition of this case. We address in turn the questions whether the appellate court had jurisdiction to review (1) the order rejecting the Attorney General’s certification and denying substitution of the United States as defendant, and (2) the order remanding the case to the state court. A The District Court’s rejection of certification and substitution effectively denied Haley the protection afforded by the Westfall Act, a measure designed to immunize covered federal employees not simply from liability, but from suit. See §2(a)(5), 102 Stat. 4563; Lamagno, 515 U. S., at 425–426; H. R. Rep. No. 100–700, p. 4 (1988). Under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), this ruling qualifies as a reviewable final decision within the compass of 28 U. S. C. §1291.[Footnote 7] Meeting the three criteria of Cohen, the District Court’s denial of certification and substitution conclusively decided a contested issue, the issue decided is important and separate from the merits of the action, and the District Court’s disposition would be effectively unreviewable later in the litigation. 337 U. S., at 546. See Mitchell v. Forsyth, 472 U. S. 511, 525–527 (1985) (holding that district court rejection of a defendant’s qualified immunity plea is immediately appealable under the Cohen doctrine because suit immunity “is effectively lost if a case is erroneously permitted to go to trial” against the immune official). As cogently explained by the Fifth Circuit in Mitchell v. Carlson, 896 F. 2d 128, 133 (1990), retaining the federal employee as a party defendant “effectively denie[s] [him] immunity from suit if [he] was entitled to such immunity under the Westfall Act. Under the Act, once the United States Attorney certifies that the federal employee acted within the scope of [his] employment, the plaintiff properly can proceed only against the United States as defendant. The federal employee remains immune from suit. By [rejecting the Attorney Genera’s certification], the district court subject[s] [the employee] to the burden of defending a suit …, a burden from which [the Westfall Act spares him].” Tellingly, the Courts of Appeals are unanimous in holding that orders denying Westfall Act certification and substitution are amenable to immediate review under Cohen. See Woodruff v. Covington, 389 F. 3d 1117, 1124 (CA10 2004); Mathis v. Henderson, 243 F. 3d 446, 448 (CA8 2001); Borneman, 213 F. 3d, at 826 (CA4); Lyons v. Brown, 158 F. 3d 605, 607 (CA1 1998); Taboas v. Mlynczak, 149 F. 3d 576, 579 (CA7 1998); Coleman v. United States, 91 F. 3d 820, 823 (CA6 1996); Flohr v. Mackovjak, 84 F. 3d 386, 390 (CA11 1996); Kimbro, 30 F. 3d, at 1503 (CADC); Aliota, 984 F. 2d, at 1354 (CA3); Pelletier v. Federal Home Loan Bank, 968 F. 2d 865, 873 (CA9 1992); McHugh, 966 F. 2d, at 69 (CA2); Carlson, 896 F. 2d, at 133 (CA5). We confirm that the Courts of Appeals have ruled correctly on this matter. B In our order granting certiorari we asked the parties to address, in addition to the issues presented in the petition, this further question: Did the Court of Appeals have jurisdiction to review the District Court’s remand order, notwithstanding 28 U. S. C. §1447(d)’s declaration that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise”? In answering this question, we also resolve the second question presented in the petition for certiorari—whether the Westfall Act’s rule against remanding actions removed pursuant to §2679(d)(2) applies when the federal court determines that the United States should not be substituted as defendant in place of the federal employee. Our disposition is informed by, and tracks, the Third Circuit’s reasoning in Aliota, 984 F. 2d, at 1354–1357. We begin with the provision we asked the parties to address: §1447(d). That provision states in relevant part: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise … .” In Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336 (1976), we held that the preceding subsection, §1447(c), confined §1447(d)’s scope. Under §1447(d), the Court explained, “only remand orders issued under §1447(c) and invoking the [mandatory] grounds specified therein—that removal was improvident and without jurisdiction—are immune from review.” Id., at 346.[Footnote 8] Thermtron had been properly removed to the federal court. The sole reason the District Court gave for remanding it was that court’s crowded docket. This Court held the remand order reviewable, observing that §1447(c) could not sensibly be read to confer on the district courts “carte blanche authority … to revise the federal statutes governing removal.” Id., at 351. See also Quackenbush v. Allstate Ins. Co., 517 U. S. 706 (1996) (holding abstention-based remand order immediately appealable). But see Gravitt v. Southwestern Bell Telephone Co., 430 U. S. 723 (1977) (per curiam) (holding unreviewable a remand order purporting to rest on a ground within the scope of §1447(c)). The United States urges us to apply Thermtron and hold the remand order in this case reviewable because that order was not based on a ground specified in §1447(c). To determine whether Thermtron controls, we must start with an examination of the Westfall Act’s design, particularly its prescriptions regarding the removal and remand of actions filed in state court. As earlier noted, see supra, at 1, the Act grants the Attorney General authority to certify that a federal employee named defendant in a tort action was acting within the scope of his or her employment at the time in question. §2679(d)(1), (2). If the action is commenced in a federal court, and the Attorney General certifies that the employee “was acting within the scope of his office or employment at the [relevant] time,” the United States must be substituted as the defendant. §2679(d)(1). If the action is launched in a state court, and the Attorney General makes the same certification, the action “shall be removed” to the appropriate federal district court, and again the United States must be substituted as the defendant. §2679(d)(2). Of prime importance to our decision, §2679(d)(2) concludes with the command: “Th[e] certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” (Emphasis added.) This directive markedly differs from Congress’ instruction for cases in which the Attorney General “refuse[s] to certify scope of office or employment.” §2679(d)(3). In that event, the defendant employee may petition the court in which the action was instituted to make the scope-of-employment certification. If the complaint was filed in a state court, the Attorney General may remove the case to the appropriate federal court, but he is not obliged to do so. Ibid. If the court, state or federal, issues the certification, “the United States shall be substituted as the party defendant.” Ibid. If removal has occurred, and thereafter “the district court determines that the employee was not acting within the scope of his office or employment, the action … shall be remanded to the State court.” Ibid. (emphasis added). The Act’s distinction between removed cases in which the Attorney General issues a scope-of-employment certification, and those in which he does not, leads us to conclude that Congress gave district courts no authority to return cases to state courts on the ground that the Attorney General’s certification was unwarranted. Absent certification, §2679(d)(3) directs that the case must be remanded to the state court in which the action commenced. In contrast, when the Attorney General certifies scope of employment, his certificate “conclusively establish[es] scope of office or employment for purposes of removal.” §2679(d)(2) (emphasis added). Section 2679(d)(2) does not preclude a district court from resubstituting the federal official as defendant for purposes of trial if the court determines, postremoval, that the Attorney General’s scope-of-employment certification was incorrect. For purposes of establishing a forum to adjudicate the case, however, §2679(d)(2) renders the Attorney General’s certification dispositive.[Footnote 9] Were it open to a district court to remand a removed action on the ground that the Attorney General’s certification was erroneous, the final instruction in §2679(d)(2) would be weightless. The Attorney General’s certification would not “conclusively establish scope of office or employment” for either trial or removal. Instead, the Attorney General’s scope certification would supply only a tentative basis for removal, rather than a conclusive one. In Lamagno, the Court unanimously agreed that Congress spoke unambiguously on this matter: Congress adopted the “conclusiv[e] … for purposes of removal” language to “foreclose needless shuttling of a case from one court to another.” 515 U. S., at 433, n. 10; see id., at 440 (Souter, J., dissenting) (“[T]here is nothing equivocal about [§2679(d)(2)’s] provision that once a state tort action has been removed to a federal court after a certification by the Attorney General, it may never be remanded to the state system.”). With the Westfall Act’s provisions on removal of actions filed in state court in clear view, we return to the question whether an order remanding a case removed pursuant to §2679(d)(2) is reviewable. Thermtron held that §1447(d) must be read together with §1447(c). There is stronger cause, we conclude, to hold that §1447(c) and (d) must be read together with the later enacted §2679(d)(2). Both §1447(d) and §2679(d)(2) are antishuttling provisions. Each aims to prevent “prolonged litigation of questions of jurisdiction of the district court to which the cause is removed.” United States v. Rice, 327 U. S. 742, 751 (1946). Section 2679(d)(2) is operative when the Attorney General certifies scope of employment, triggering removal of the case to a federal forum. At that point, §2679(d)(2) renders the federal court exclusively competent and categorically precludes a remand to the state court. The command that the Attorney General’s certification “shall conclusively establish scope of office or employment for purposes of removal,” §2679(d)(2), differentiates certified Westfall Act cases from the typical case remanded for want of subject-matter jurisdiction. Ordinarily, when the plaintiff moves to remand a removed case for lack of subject-matter jurisdiction, the federal district court undertakes a threshold inquiry; typically the court determines whether complete diversity exists or whether the complaint raises a federal question. In Attorney General certified Westfall Act cases, however, no threshold determination is called for; the Attorney General’s certificate forecloses any jurisdictional inquiry. By declaring the Attorney General’s certification “conclusive” as to the federal forum’s jurisdiction, Congress has barred a district court from passing the case back to the state court where it originated based on the court’s disagreement with the Attorney General’s scope-of-employment determination. Our decision that §2679(d)(2) leaves the district court without authority to send a certified case back to the state court scarcely means that whenever the district court misconstrues a jurisdictional statute, appellate review of the remand is in order. Such an exception would, of course, collide head on with §1447(d), and with our precedent. See, e.g., Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127–128 (1995). Only in the extraordinary case in which Congress has ordered the intercourt shuttle to travel just one way—from state to federal court—does today’s decision hold sway. In short, of the two antishuttling commands, §1447(d) and §2679(d)(2), only one can prevail. We hold that §2679(d)(2) controls. Tailor-made for Westfall Act cases, §2679(d)(2) is a forum-selecting rule Congress made “conclusive,” beyond the ken of district courts to revise. See Thermtron, 423 U. S., at 351. C In Lamagno, the Court considered, but did not definitively resolve, the question whether Article III permits “[t]reating the Attorney General’s certification as conclusive for purposes of removal but not for purposes of substitution.” 515 U. S., at 434. It was argued in that case that if certification is rejected and substitution denied “because the federal court concludes that the employee acted outside the scope of his employment, and if the tort plaintiff and the [defendant-employee] are not of diverse citizenship, … then the federal court will be left with a case without a federal question to support the court’s subject-matter jurisdiction.” Id., at 434–435. Lamagno was an action commenced in federal court on the basis of diversity of citizenship, so there was in that case “not even the specter of an Article III problem.” Id., at 435. In the case before us, the question would arise only if, after full consideration, the District Court determines that Haley in fact engaged in the tortious conduct outside the scope of his employment charged in Osborn’s complaint. At that point, however, little would be left to adjudicate, at least as to Haley’s liability. Because a significant federal question (whether Haley has Westfall Act immunity) would have been raised at the outset, the case would “aris[e] under” federal law, as that term is used in Article III. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493 (1983). Even if only state-law claims remained after resolution of the federal question, the District Court would have discretion, consistent with Article III, to retain jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 350–351 (1988) (when federal character of removed case is eliminated while the case is sub judice, court has discretion to retain jurisdiction, to remand, or to dismiss); cf. Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966) (pendent jurisdiction may be exercised when federal and state claims have a “common nucleus of operative fact” and would “ordinarily be expected to [be tried] all in one judicial proceeding”). See also 28 U. S. C. §1367 (“Supplemental jurisdiction”). “[C]onsiderations of judicial economy, convenience and fairness to litigants,” Gibbs, 383 U. S., at 726, make it reasonable and proper for a federal court to proceed to final judgment, once it has invested time and resources to resolve the pivotal scope-of-employment contest. Thus, under the precedent that guides us, the Westfall Act’s command that a district court retain jurisdiction over a case removed pursuant to §2679(d)(2) does not run afoul of Article III. III With the jurisdictional issues resolved, we reach the principal question raised by petitioner Osborn: whether the United States Attorney validly certified that Haley “was acting within the scope of his employment … at the time of the conduct alleged in the complaint.” Luber App. 23. We note first that the certificate is formally in order; it closely tracks the language of the Westfall Act. See §2679(d)(2) (authorizing certification “that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose”). In Lamagno, we held that the Attorney General’s certification is “the first, but not the final word” on whether the federal officer is immune from suit and, correlatively, whether the United States is properly substituted as defendant. 515 U. S., at 432. A plaintiff may request judicial review of the Attorney General’s scope-of-employment determination, as Osborn did here. As earlier recounted, see supra, at 6, the District Court initially accepted Osborn’s allegations as true because it believed that the United States did not dispute them. Applying Kentucky law, that court determined that “Haley’s alleged actions occurred outside the scope of his employment.” App. to Pet. for Cert. 24a. In a motion for reconsideration, the Government clarified that, far from admitting Osborn’s allegations, it disputed the very occurrence of the harm-causing conduct Osborn alleged. In support of the motion, the Government submitted affidavits from Haley and Luber denying that they engaged in the conduct ascribed to them in Osborn’s complaint. The Government contended that Haley remained within the proper bounds of his employment at the relevant time and place because the wrongdoing Osborn alleged never happened. The Government’s reconsideration motion asked the District Court to resolve the factual dispute, i.e., to determine whether, as the complaint alleged, Haley prevailed upon Luber to discharge Osborn, or whether, as Haley asserted, he never communicated with Luber about Osborn’s LBLA employment. The court did not grant the Government’s request for resolution of the factual dispute. Instead, it held the Westfall Act certification invalid precisely because the Government denied that Haley engaged in harm-causing conduct. Two Courts of Appeals have held that Westfall Act certification is improper when the Government denies the occurrence of the alleged injury-causing action or episode. See Wood, 995 F. 2d, at 1123 (CA1); McHugh, 966 F. 2d, at 74–75 (CA2). The Sixth Circuit, in this case, and several other Courts of Appeals have held that a plaintiff’s allegation of conduct beyond the scope of a federal official’s employment does not block certification where the Government contends that the alleged tortious conduct did not occur. See Heuton, 75 F. 3d, at 360 (CA8); Kimbro, 30 F. 3d, at 1508 (CADC); Melo, 13 F. 3d, at 746–747 (CA3). We agree that Westfall Act certification is proper when a federal officer charged with misconduct asserts, and the Government determines, that the incident or episode in suit never occurred. A The Westfall Act grants a federal employee suit immunity, we reiterate, when “acting within the scope of his office or employment at the time of the incident out of which the claim arose.” §2679(d)(1), (2). That formulation, we are persuaded, encompasses an employee on duty at the time and place of an “incident” alleged in a complaint who denies that the incident occurred. See Wood, 995 F. 2d, at 1134 (joint opinion of Coffin, Selya, and Boudin, JJ., dissenting) (“[S]urely the statute applies with the same force whether a postal service driver says that he did not hit the plaintiff's car or that he did so but was not at fault.”); Melo, 13 F. 3d, at 747. And just as the Government’s certification that an employee “was acting within the scope of his employment” is subject to threshold judicial review, Lamagno, 515 U. S., at 434, so a complaint’s charge of conduct outside the scope of employment, when contested, warrants immediate judicial investigation. Were it otherwise, a federal employee would be stripped of suit immunity not by what the court finds, but by what the complaint alleges.[Footnote 10] In sum, given the purpose of the Westfall Act to shield covered employees not only from liability but from suit, it is altogether appropriate to afford protection to a “negligent … employee … as a matter of course.” Wood, 995 F. 2d, at 1135 (joint opinion of Coffin, Selya, and Boudin, JJ., dissenting). But it would make scant sense to read the Act as leaving an employee charged with an intentional tort[Footnote 11] to fend for himself when he denies wrongdoing and asserts he “engaged only in proper behavior occurring wholly within the scope of his office or employment.” Ibid. See also Hueton, 75 F. 3d, at 360 (“[I]t is illogical to assume that Congress intended to protect guilty employees but desert innocent ones.”).[Footnote 12] Willingham v. Morgan, 395 U. S. 402 (1969), in which the Court construed the federal officer removal statute, 28 U. S. C. §1442, supports our reading of the Westfall Act.[Footnote 13] Section 1442(a)(1) allows an officer of the United States to remove a civil action commenced in state court if the officer is “sued in an official or individual capacity for any act under color of such office.” In Willingham, a federal inmate sued two federal prison officials in state court, alleging that they had assaulted, beaten, and tortured him. 395 U. S., at 403. The defendants removed pursuant to §1442(a)(1), and the District Court upheld their defense of official immunity. The Tenth Circuit reversed, reading §1442(a)(1) to permit removal only when a defendant “exclude[s] the possibility that the suit is based on acts or conduct not justified by his federal duty.” Morgan v. Willingham, 383 F. 2d 139, 141 (1967). We rejected that narrow construction of the statute and held §1442 “broad enough to cover all cases where federal officers can raise a colorable defense arising out of the duty to enforce federal law.” 395 U. S., at 406–407. The plaintiff in Willingham disputed that the defendant federal officials had acted under color of office. He alleged that they “had been acting on a frolic of their own which had no relevancy to their official duties as employees or officers of the United States.” Id., at 407 (internal quotation marks omitted). The Court held that the officers “should have the opportunity to present their version of the facts to a federal, not a state, court.” Id., at 409 (emphasis added). We see no reason to conclude that the Attorney General’s ability to remove a suit to federal court under §2679(d)(2), unlike a federal officer’s ability to remove under §1442, should be controlled by the plaintiff’s allegations. In Willingham, the federal officer’s “relationship to [the plaintiff] derived solely from their official duties.” Ibid. Similarly here, Haley interacted with Osborn and Luber only through his employment as a Forest Service officer.[Footnote 14] For purposes of removal under §1442(a), the defendants in Willingham were not required to accept the truth of the plaintiff’s allegations that they were “on a frolic of their own,” id., at 407 (internal quotation marks omitted), and had tortured plaintiff “out of malice,” 383 F. 2d, at 140 (internal quotation marks omitted). So here, for purposes of removal under §2679(d)(2), Haley and the Government were not required to accept as true Osborn’s allegations that Haley “maliciously induced” her dismissal from LBLA “in retaliation for plaintiff filing a veterans’ preference inquiry.” Complaint ¶29, Luber App. 7. Haley, like the defendant in Willingham, may have been on frolic of his own as Osborn alleged, and therefore may not be entitled to immunity. But like the officers in Willingham, he should have the opportunity to “present [his] version of the facts to a federal … court.” 395 U. S., at 409. B Tugging against our reading of the Westfall Act, we recognize, is a “who decides” concern. If the Westfall Act certification must be respected unless and until the District Court determines that Haley, in fact, engaged in conduct beyond the scope of his employment, then Osborn may be denied a jury trial. Compare Wood, 995 F. 2d, at 1126, 1130, with id., at 1134–1138 (joint opinion of Coffin, Selya, and Boudin, JJ., dissenting). Should the District Court find that Haley did not maliciously induce Luber to discharge Osborn, but instead interacted with Luber and Osborn only within the proper bounds of his employment, Osborn will lose on the merits with no access to a jury of her peers.[Footnote 15] “This is not a small objection,” for the issue “that goes to the heart of the merits, as well as to the validity of the certificate,” will likely turn on the credibility of Osborn, Haley, and Luber, and credibility “may be well suited for jury resolution.” See id., at 1136–1137.[Footnote 16] Under the Westfall Act, however, Congress supplanted the jury in covered cases. See §2679(d)(1)–(3). Upon certification, the action is “deemed to be … brought against the United States,” ibid., unless and until the district court determines that the federal officer originally named as defendant was acting outside the scope of his employment. The Seventh Amendment, which preserves the right to a jury trial in suits at common law, we have held, does not apply to proceedings against the sovereign. Lehman v. Nakshian, 453 U. S. 156 (1981). See also §2402 (actions against the United States ordinarily “shall be tried by the court without a jury”). Thus, at the time the district court reviews the Attorney General’s certification, the plaintiff has no right to a jury trial. See Kimbro, 30 F. 3d, at 1509, n. 4.[Footnote 17] The Westfall Act’s core purpose also bears on the appropriate trier of any facts essential to certification. That purpose is to relieve covered employees from the cost and effort of defending the lawsuit, and to place those burdens on the Government’s shoulders. See supra, at 9–10. Immunity-related issues, the Court has several times instructed, should be decided at the earliest opportunity. See, e.g., Hunter v. Bryant, 502 U. S. 224, 228 (1991) (per curiam) (“Immunity ordinarily should be decided by the court long before trial.”); Anderson v. Creighton, 483 U. S. 635, 646, n. 6 (1987) (“[I]mmunity questions should be resolved at the earliest possible stage of litigation.”).[Footnote 18] * * * For the reasons stated, the judgment of the United States Court of Appeals for the Sixth Circuit is Affirmed. Footnote 1 We draw this account of the facts from the District Court’s opinion and order denying reconsideration, supplemented by the allegations in Osborn’s complaint. Footnote 2 The certification read: “I, Monica Wheatley, Acting United States Attorney, Western District of Kentucky, acting pursuant to the provisions of 28 U. S. C. §2679(d)(2), and by virtue of the authority vested in me by the Appendix to 28 C.F.R. §15.3 (1990), hereby certify that the Office of the United States Attorney has reviewed the available facts in this matter. On the basis of the information now available to me with respect to the allegations in the complaint, I find that the named federal defendant, Barry Haley, was acting within the scope of his employment with the U. S. Forest Service, at the time of the conduct alleged in the complaint.” Luber App. 23. Footnote 3 The federal officer removal statute provides that “[a] civil action or criminal prosecution commenced in a State court against” “any officer … of the United States … sued in an official or individual capacity for any act under color of such office” “may be removed . . . to the district court of the United States for the district and division embracing the place wherein it is pending.” §1442(a), (a)(1), (b). Footnote 4 The District Court did not address the propriety of removal under §1442. See infra, at 20, n. 11. Footnote 5 Section 1447(c) provides: “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.” Footnote 6 The District Court refused to entertain the alternative argument that, if a relevant Haley-Luber conversation did occur, Haley was acting within the scope of his employment. Because Haley had declared, under oath, that he did not communicate with Luber, the court was unwilling to allow discovery on the question whether, if Haley did contact Luber, he was acting within the scope of his employment. But cf. Fed. Rule Civ. Proc. 8(e)(2) (subject to Rule 11 obligations, parties may plead claims or defense “alternately or hypothetically”). We express no opinion on the propriety of the District Court’s refusal to consider the Government’s alternative pleading. Footnote 7 Section 1291 provides that “[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts.” Footnote 8 At the time Thermtron was decided, §1447(c) required a district court to remand a case if it appeared that the case had been “removed improvidently and without jurisdiction.” 28 U. S. C. §1447(c) (1970 ed.). Section 1447(c) now provides that a case must be remanded if “it appears that the district court lacks subject matter jurisdiction.” Footnote 9 As explained by the Third Circuit in Melo v. Hafer, 912 F. 2d 628, 641 (1990), “[t]here are significant policy reasons why Congress would choose to give the government an unchallengeable right to have a federal forum for tort suits brought against its employees.” But Congress’ endeavor to secure that right does not mean that Congress also intended to render unreviewable substitution of the United States as defendant in place of the employee. See ibid.; cf. Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 430–434 (1995). Footnote 10 In an opinion resembling his majority opinion in Wood v. United States, 995 F. 2d 1122 (CA1 1993) (en banc), Justice Breyer takes the view that the Attorney General may issue a Westfall Act certification if he contests the plaintiff’s account of the episode-in-suit, but he must “assume some kind of incident” in order to certify. Post, at 2. Thus he would not permit “purely incident-denying certifications,” and he places the certification here in that category. Ibid. We agree with the Wood dissenters’ appraisal of Justice Breyer’s distinction between incident-denying and incident-recharacterizing certifications: That approach would require district courts “to engage in difficult, time-wasting controversies … about precisely which facts pertaining to the scope of employment issue are for the district judge and which are for the jury.” 995 F. 2d, at 1136, and n. 7 (joint opinion of Coffin, Selya, and Boudin, JJ., dissenting). Accord Kimbro v. Velten, 30 F. 3d 1501, 1507 (CADC 1994) (“[I]t would be impossible … to draw a distinction between a characterization of an incident and whether or not it actually occurred.”). Footnote 11 See id., at 1505 (observing that the question here presented “tend[s] to arise in cases of alleged intentional torts”). Footnote 12 Under Justice Breyer’s view, when, in fact, “nothing involving the employee happened at all … no Westfall Act immunity would be available.” Post, at 6–7. He thinks this “is just as it should be. ” Post, at 7. We disagree. Congress did not, and sensibly should not, command that innocent employees be left outside the Westfall Act’s grant of suit immunity. “Congress’ statute and its policy,” we agree, “both look in the opposite direction.” Wood, 995 F. 2d, at 1136 (joint opinion of Coffin, Selya, and Boudin, JJ., dissenting). Footnote 13 The notice of removal in this case invoked §1442 as well as §2679. In the Sixth Circuit, however, the Government did not urge §1442 as a separate ground for reversing the District Court. Footnote 14 In the context of §1442, we have held that, to qualify for removal, a federal official must show “a nexus … between the charged conduct and asserted official authority.” Jefferson County v. Acker, 527 U. S. 423, 431 (1999) (citations and internal quotation marks omitted). We need not today decide whether qualification for Westfall Act immunity is similarly limited, for in this case, a nexus plainly exists connecting the incident Osborn alleged and Haley’s federal employment. We note, however, that nothing in our opinion commits the Court to the view that Westfall Act immunity is available in fanciful situations like the one Justice Breyer hypothesizes, post, at 1–2, in which the plaintiff’s allegations are wholly unrelated to the defendant’s federal employment. Justice Breyer posits the case of a Yellowstone Park forest ranger accused of misdeeds at Coney Island. He says we would find Westfall Act immunity—more accurately, we would uphold Westfall Act certification—even if the ranger’s “presen[ce] on Coney Island must have been … on a frolic of his own.” Post, at 1. If Justice Breyer is imagining a case in which the ranger was in fact on a frolic at Coney Island, but the Attorney General nevertheless issued a Westfall Act certificate, we would not approve the certification. In that imaginary case, there would be no sense in which the ranger was acting within the scope of his employment at the time of the incident charged in the plaintiff’s complaint. If, instead, Justice Breyer has in mind a ranger accused of frolicking at Coney Island, when all the while he stayed close to his desk at Yellowstone Park, then Justice Breyer is correct: Westfall Act immunity might be available under our approach. If such a case ever shows up in a federal court, however, the district judge might be called upon to determine whether removal and substitution under §2679(d)(2) are limited by a nexus requirement similar to the one that limits removal under §1442. Footnote 15 The overlap of certification validity and the merits of the plaintiff’s claim, evident here, is uncommon. It is unlikely to occur when the plaintiff alleges negligent conduct. The question whether a federal driver was acting within the scope of his employment at the time of an accident, for example, can generally be answered without simultaneously determining whether the federal employee drove negligently or carefully. And even when the plaintiff alleges an intentional tort, it may be possible to resolve the scope-of-employment question without deciding the merits of the claim. If a plaintiff charges a federal employee with sexual assault, for example, upon determining that there was sexual contact, a district court could find that the employee acted outside the scope of his duties, leaving the question whether the contact was consensual for jury resolution. Footnote 16 But cf. 995 F. 2d, at 1137 (observing that “[i]n the ordinary tort claim arising when a government driver negligently runs into another car, jury trial is precisely what is lost to a plaintiff when the government is substituted for the employee”). Footnote 17 We do not address the case in which the Attorney General refuses certification. In that event, §2679(d)(3) allows the named defendant to “petition the court to find and certify that [he] was acting within the scope of his … employment.” However, the Westfall Act gives the named defendant no right to remove an uncertified case. But see 28 U. S. C. §1442(a)(1). That right is accorded to the Attorney General only. Because the scope determination would be made in such a case before any substitution of the United States as defendant takes place, it is arguable that a jury trial of that issue would be required if the case is before a federal court. If the case was brought in a state court and the Attorney General declines to remove, the Seventh Amendment would not figure in the case, for it is inapplicable to proceedings in state court. Minneapolis & St. Louis R. Co. v. Bombolis, 241 U. S. 211, 217 (1916). Footnote 18 Justice Breyer suggests that, with respect to immunity defenses, our “reading of the Westfall Act works a major change in th[e] [ordinary] fact/law relationship.” Post, at 5. Nothing in our opinion touches on that relationship in the typical case in which a defendant official raises a defense of absolute or qualified immunity. We simply observe that the Westfall Act grants federal employees a species of immunity, and that, under our jurisprudence, immunity-related questions should be resolved at the earliest opportunity. Justice Breyer is right, however, to this extent. We recognize that judges have a greater factfinding role in Westfall Act cases than they traditionally have in other immunity contexts. The Act makes that inevitable. When Westfall Act immunity is in dispute, a district court is called upon to decide who the proper defendant is: the named federal employee, or the United States. That decision cannot be left for jury resolution late in proceedings without undermining the Westfall Act’s very purpose: to shift the burden of defending the suit to the United States whenever the defendant-employee was, at the relevant time, acting within the scope of his employment.
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551.US.930
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Petitioner was convicted of capital murder in a Texas state court and sentenced to death despite his well-documented history of mental illness. After the Texas courts denied relief on direct appeal, petitioner filed a federal habeas petition pursuant to 28 U. S. C. §2254, but the District Court and the Fifth Circuit rejected his claims, and this Court denied certiorari. In the course of these initial state and federal proceedings, petitioner did not argue that mental illness rendered him incompetent to be executed. Once the state trial court set an execution date, petitioner filed a motion under Texas law claiming, for the first time, that he was incompetent to be executed because of mental illness. The trial judge denied the motion without a hearing and the Texas Court of Criminal Appeals dismissed petitioner’s appeal for lack of jurisdiction. He then filed another federal habeas petition under §2254, and the District Court stayed his execution to allow the state trial court time to consider evidence of his then-current mental state. Once the state court began its adjudication, petitioner submitted 10 motions in which he requested, inter alia, a competency hearing and funds for a mental health expert. The court indicated it would rule on the outstanding motions once it had received the report written by the experts that it had appointed to review petitioner’s mental condition. The experts subsequently filed this report, which concluded, inter alia, that petitioner had the ability to understand the reason he was to be executed. Without ruling on the outstanding motions, the judge found petitioner competent and closed the case. Petitioner then returned to the Federal District Court, seeking a resolution of his pending §2254 petition. The District Court concluded that the state-court competency proceedings failed to comply with Texas law and were constitutionally inadequate in light of the procedural requirements mandated by Ford v. Wainwright, 477 U. S. 399, 410, where this Court held that the Eighth Amendment prohibits States from inflicting the death penalty upon insane prisoners. Although the court therefore reviewed petitioner’s incompetency claim without deferring to the state court’s finding of competency, it nevertheless granted no relief, finding that petitioner had not demonstrated that he met the standard for incompetency. Under Fifth Circuit precedent, the court explained, petitioner was competent to be executed so long as he knew the fact of his impending execution and the factual predicate for it. The Fifth Circuit affirmed. Held: 1. This Court has statutory authority to adjudicate the claims raised in petitioner’s second federal habeas application. Because §2244(b)(2) requires that “[a] claim presented in a second or successive … [§2254] application … that was not presented in a prior application … be dismissed,” the State maintains that the failure of petitioner’s first §2254 application to raise a Ford-based incompetency claim deprived the District Court of jurisdiction. The results this argument would produce show its flaws. Were the State’s interpretation of “second or successive” correct, a prisoner would have two options: forgo the opportunity to raise a Ford claim in federal court; or raise the claim in a first federal habeas application even though it is premature. Stewart v. Martinez-Villareal, 523 U. S. 637, 644. The dilemma would apply not only to prisoners with mental conditions that, at the time of the initial habeas filing, were indicative of incompetency but also to all other prisoners, including those with no early sign of mental illness. Because all prisoners are at risk of deteriorations in their mental state, conscientious defense attorneys would be obliged to file unripe (and, in many cases, meritless) Ford claims in each and every §2254 application. This counterintuitive approach would add to the burden imposed on courts, applicants, and the States, with no clear advantage to any. The more reasonable interpretation of §2244, suggested by this Court’s precedents, is that Congress did not intend the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) addressing “second or successive” habeas petitions to govern a filing in the unusual posture presented here: a §2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe. See, e.g., Martinez-Villareal, supra, at 643–645. This conclusion is confirmed by AEDPA’s purposes of “further[ing] comity, finality, and federalism,” Miller-El v. Cockrell, 537 U. S. 322, 337, “promot[ing] judicial efficiency and conservation of judicial resources, … and lend[ing] finality to state court judgments within a reasonable time,” Day v. McDonough, 547 U. S. 198, 205–206. These purposes, and the practical effects of the Court’s holdings, should be considered when interpreting AEDPA, particularly where, as here, petitioners “run the risk” under the proposed interpretation of “forever losing their opportunity for any federal review of their unexhausted claims,” Rhines v. Weber, 544 U. S. 269, 275. There is, finally, no argument in this case that petitioner proceeded in a manner that could be considered an abuse of the writ. Cf. Felker v. Turpin, 518 U. S. 651, 664. To the contrary, the Court has suggested that it is generally appropriate for a prisoner to wait before seeking the resolution of unripe incompetency claims. See, e.g., Martinez-Villareal, supra, at 644–645. Pp. 9–15. 2. The state court failed to provide the procedures to which petitioner was entitled under the Constitution. Ford identifies the measures a State must provide when a prisoner alleges incompetency to be executed. Justice Powell’s opinion concurring in part and concurring in the judgment in Ford controls, see Marks v. United States, 430 U. S. 188, 193, and constitutes “clearly established” governing law for AEDPA purposes, §2254(d)(1). As Justice Powell elaborated, once a prisoner seeking a stay of execution has made “a substantial threshold showing of insanity,” 477 U. S., at 424, the Eighth and Fourteenth Amendments entitle him to, inter alia, a fair hearing, ibid., including an opportunity to submit “expert psychiatric evidence that may differ from the State’s own psychiatric examination,” id., at 427. The procedures the state court provided petitioner were so deficient that they cannot be reconciled with any reasonable interpretation of the Ford rule. It is uncontested that petitioner made a substantial showing of incompetency. It is also evident from the record, however, that the state court reached its competency determination without holding a hearing or providing petitioner with an adequate opportunity to provide his own expert evidence. Moreover, there is a strong argument that the court violated state law by failing to provide a competency hearing. If so, the violation undermines any reliance the State might now place on Justice Powell’s assertion that “the States should have substantial leeway to determine what process best balances the various interests at stake.” Id., at 427. Under AEDPA, a federal court may grant habeas relief, as relevant, only if a state court’s “adjudication of [a] claim on the merits … resulted in a decision that … involved an unreasonable application” of the relevant federal law. §2254(d)(1). If the state court’s adjudication is dependent on an antecedent unreasonable application of federal law, that requirement is satisfied, and the federal court must then resolve the claim without the deference AEDPA otherwise requires. See, e.g., Wiggins v. Smith, 539 U. S. 510, 534. Having determined that the state court unreasonably applied Ford when it accorded petitioner the procedures in question, this Court must now consider petitioner’s claim on the merits without deferring to the state court’s competency finding. Pp. 15–21. 3. The Fifth Circuit employed an improperly restrictive test when it considered petitioner’s claim of incompetency on the merits. Pp. 21–28. (a) The Fifth Circuit’s incompetency standard is too restrictive to afford a prisoner Eighth Amendment protections. Petitioner’s experts in the District Court concluded that, although he claims to understand that the State says it wants to execute him for murder, his mental problems have resulted in the delusion that the stated reason is a sham, and that the State actually wants to execute him to stop him from preaching. The Fifth Circuit held, based on its earlier decisions, that such delusions are simply not relevant to whether a prisoner can be executed so long as he is aware that the State has identified the link between his crime and the punishment to be inflicted. This test ignores the possibility that even if such awareness exists, gross delusions stemming from a severe mental disorder may put that awareness in a context so far removed from reality that the punishment can serve no proper purpose. It is also inconsistent with Ford, for none of the principles set forth therein is in accord with the Fifth Circuit’s rule. Although the Ford opinions did not set forth a precise competency standard, the Court did reach the express conclusion that the Constitution “places a substantive restriction on the State’s power to take the life of an insane prisoner,” 477 U. S., at 405, because, inter alia, such an execution serves no retributive purpose, id., at 408. It might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole, including the victim’s surviving family and friends, to affirm its own judgment that the prisoner’s culpability is so serious that the ultimate penalty must be sought and imposed. Both the potential for this recognition and the objective of community vindication are called into question, however, if the prisoner’s only awareness of the link between the crime and the punishment is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding shared by the community as a whole. A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. To refuse to consider evidence of this nature is to mistake Ford’s holding and its logic. Pp. 21–28. (b) Although the Court rejects the Fifth Circuit’s standard, it does not attempt to set down a rule governing all competency determinations. The record is not as informative as it might be because it was developed by the District Court under the rejected standard, and, thus, this Court finds it difficult to amplify its conclusions or to make them more precise. It is proper to allow the court charged with overseeing the development of the evidentiary record the initial opportunity to resolve petitioner’s constitutional claim. Pp. 28–30. 448 F. 3d 815, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined.
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“[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford v. Wainwright, 477 U. S. 399, 409–410 (1986). The prohibition applies despite a prisoner’s earlier competency to be held responsible for committing a crime and to be tried for it. Prior findings of competency do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition. Under Ford, once a prisoner makes the requisite preliminary showing that his current mental state would bar his execution, the Eighth Amendment, applicable to the States under the Due Process Clause of the Fourteenth Amendment, entitles him to an adjudication to determine his condition. These determinations are governed by the substantive federal baseline for competency set down in Ford. Scott Louis Panetti, referred to here as petitioner, was convicted and sentenced to death in a Texas state court. After the state trial court set an execution date, petitioner made a substantial showing he was not competent to be executed. The state court rejected his claim of incompetency on the merits. Filing a petition for writ of habeas corpus in the United States District Court for the Western District of Texas, petitioner claimed again that his mental condition barred his execution; that the Eighth Amendment set forth a substantive standard for competency different from the one advanced by the State; and that prior state-court proceedings on the issue were insufficient to satisfy the procedural requirements mandated by Ford. The State denied these assertions and argued, in addition, that the federal courts lacked jurisdiction to hear petitioner’s claims. We conclude we have statutory authority to adjudicate the claims petitioner raises in his habeas application; we find the state court failed to provide the procedures to which petitioner was entitled under the Constitution; and we determine that the federal appellate court employed an improperly restrictive test when it considered petitioner’s claim of incompetency on the merits. We therefore reverse the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further consideration. I On a morning in 1992 petitioner awoke before dawn, dressed in camouflage, and drove to the home of his estranged wife’s parents. Breaking the front-door lock, he entered the house and, in front of his wife and daughter, shot and killed his wife’s mother and father. He took his wife and daughter hostage for the night before surrendering to police. Tried for capital murder in 1995, petitioner sought to represent himself. The court ordered a psychiatric evaluation, which indicated that petitioner suffered from a fragmented personality, delusions, and hallucinations. 1 App. 9–14. The evaluation noted that petitioner had been hospitalized numerous times for these disorders. Id., at 10; see also id., at 222. Evidence later revealed that doctors had prescribed medication for petitioner’s mental disorders that, in the opinion of one expert, would be difficult for a person not suffering from extreme psychosis even to tolerate. See id., at 233 (“I can’t imagine anybody getting that dose waking up for two to three days. You cannot take that kind of medication if you are close to normal without absolutely being put out”). Petitioner’s wife described one psychotic episode in a petition she filed in 1986 seeking extraordinary relief from the Texas state courts. See id., at 38–40. She explained that petitioner had become convinced the devil had possessed their home and that, in an effort to cleanse their surroundings, petitioner had buried a number of valuables next to the house and engaged in other rituals. Id., at 39. Petitioner nevertheless was found competent to be tried and to waive counsel. At trial he claimed he was not guilty by reason of insanity. During his trial petitioner engaged in behavior later described by his standby counsel as “bizarre,” “scary,” and “trance-like.” Id., at 26, 21, 22. According to the attorney, petitioner’s behavior both in private and in front of the jury made it evident that he was suffering from “mental incompetence,” id., at 26; see also id., at 22-23, and the net effect of this dynamic was to render the trial “truly a judicial farce, and a mockery of self-representation,” id., at 26. There was evidence on the record, moreover, to indicate that petitioner had stopped taking his antipsychotic medication a few months before trial, see id., at 339, 345, a rejection of medical advice that, it appears, petitioner has continued to this day with one brief exception, see Brief for Petitioner 16–17. According to expert testimony, failing to take this medication tends to exacerbate the underlying mental dysfunction. See id., at 16, 18, n. 12; see also 1 App. 195, 228. And it is uncontested that, less than two months after petitioner was sentenced to death, the state trial court found him incompetent to waive the appointment of state habeas counsel. See Brief for Petitioner 15, n. 10. It appears, therefore, that petitioner’s condition has only worsened since the start of trial. The jury found petitioner guilty of capital murder and sentenced him to death. Petitioner challenged his conviction and sentence both on direct appeal and through state habeas proceedings. The Texas courts denied his requests for relief. See Panetti v. State, No. 72,230 (Crim. App., Dec. 3, 1997); Ex parte Panetti, No. 37,145–01 (Crim. App., May 20, 1998). This Court twice denied a petition for certiorari. Panetti v. Texas, 525 U. S. 848 (1998); Panetti v. Texas, 524 U. S. 914 (1998). Petitioner filed a petition for writ of habeas corpus pursuant to 28 U. S. C. §2254 in the United States District Court for the Western District of Texas. His claims were again rejected, both by the District Court, Panetti v. Johnson, Cause No. A–99–CV–260–SS (2001), and the Court of Appeals for the Fifth Circuit, Panetti v. Cockrell, 73 Fed. Appx. 78 (2003) (judgt. order), and we again denied a petition for certiorari, Panetti v. Dretke, 540 U. S. 1052 (2003). Among the issues petitioner raised in the course of these state and federal proceedings was his competency to stand trial and to waive counsel. Petitioner did not argue, however, that mental illness rendered him incompetent to be executed. On October 31, 2003, Judge Stephen B. Ables of the 216th Judicial District Court in Gillespie County, Texas, set petitioner’s execution date for February 5, 2004. See First Order Setting Execution in Cause No. 3310; Order Setting Execution in Cause No. 3310. On December 10, 2003, counsel for petitioner filed with Judge Ables a motion under Tex. Code Crim. Proc. Ann., Art. 46.05 (Vernon Supp. Pamphlet 2006). Petitioner claimed, for the first time, that due to mental illness he was incompetent to be executed. The judge denied the motion without a hearing. When petitioner attempted to challenge the ruling, the Texas Court of Criminal Appeals dismissed his appeal for lack of jurisdiction, indicating it has authority to review an Art. 46.05 determination only when a trial court has determined a prisoner is incompetent. Ex parte Panetti, No. 74,868 (Jan. 28, 2004) (per curiam). Petitioner returned to federal court, where he filed another petition for writ of habeas corpus pursuant to §2254 and a motion for stay of execution. On February 4, 2004, the District Court stayed petitioner’s execution to “allow the state court a reasonable period of time to consider the evidence of [petitioner’s] current mental state.” Order in Case No. A–04–CA–042–SS, 1 App. 113–114, 116. The state court had before it, at that time, petitioner’s Renewed Motion To Determine Competency To Be Executed (hereinafter Renewed Motion To Determine Competency). Attached to the motion were a letter and a declaration from two individuals, a psychologist and a law professor, who had interviewed petitioner while on death row on February 3, 2004. The new evidence, according to counsel, demonstrated that petitioner did not understand the reasons he was about to be executed. Due to the absence of a transcript, the state-court proceedings after this point are not altogether clear. The claims raised before this Court nevertheless make it necessary to recount the procedural history in some detail. Based on the docket entries and the parties’ filings it appears the following occurred. The state trial court ordered the parties to participate in a telephone conference on February 9, 2004, to discuss the status of the case. There followed a court directive instructing counsel to submit, by February 20, the names of mental health experts the court should consider appointing pursuant to Art. 46.05(f). See ibid. (“If the trial court determines that the defendant has made a substantial showing of incompetency, the court shall order at least two mental health experts to examine the defendant”). The court also gave the parties until February 20 to submit any motions concerning the competency procedures and advised it would hold another status conference on that same date. Defendant’s Motion To Reconsider in Cause No. 3310, pp. 1–2 (Mar. 4, 2004) (hereinafter Motion to Reconsider). On February 19, 2004, petitioner filed 10 motions related to the Art. 46.05 proceedings. They included requests for transcription of the proceedings, a competency hearing comporting with the procedural due process requirements set forth in Ford, and funds to hire a mental health expert. See Motion To Transcribe All Proceedings Related to Competency Determination Under Article 46.05 in Cause No. 3310; Motion To Ensure That The Article 46.05 “Final Competency Hearing” Comports With The Procedural Due Process Requirements of Ford in Cause No. 3310 (hereinafter Motion to Ensure); Ex Parte Motion for Prepayment of Funds To Hire Mental Health Expert To Assist Defense in Article 46.05 Proceedings in Cause No. 3310. On February 20 the court failed to hold its scheduled status conference. Petitioner’s counsel called the courthouse and was advised Judge Ables was out of the office for the day. Counsel then called the Gillespie County District Attorney, who explained that the judge had informed state attorneys earlier that week that he was cancelling the conference he had set and would appoint the mental health experts without input from the parties. Motion to Reconsider 2. On February 23, 2004, counsel for petitioner received an order, dated February 20, advising that the court was appointing two mental health experts pursuant to Art. §46.05(f). Order in Cause No. 3310, p. 1 (Feb. 26, 2004), 1 App. 59. On February 25, at an informal status conference, the court denied two of petitioner’s motions, indicating it would consider the others when the court-appointed mental health experts completed their evaluations. Motion to Reconsider 3. On March 4, petitioner filed a motion explaining that a delayed ruling would render a number of the motions moot. Id., at 1. There is no indication the court responded to this motion. The court-appointed experts returned with their evaluation on April 28, 2004. Concluding that petitioner “knows that he is to be executed, and that his execution will result in his death,” and, moreover, that he “has the ability to understand the reason he is to be executed,” the experts alleged that petitioner’s uncooperative and bizarre behavior was due to calculated design: “Mr. Panetti deliberately and persistently chose to control and manipulate our interview situation,” they claimed. 1 App. 75. They maintained that petitioner “could answer questions about relevant legal issues … if he were willing to do so.” Ibid. The judge sent a letter to counsel, including petitioner’s attorney, Michael C. Gross, dated May 14, 2004. It said: “Dear Counsel: “It appears from the evaluations performed by [the court-appointed experts] that they are of the opinion that [petitioner] is competent to be executed in accordance with the standards set out in Art. 46.05 of the Code of Criminal Procedure. “Mr. Gross, if you have any other matters you wish to have considered, please file them in the case papers and get me copies by 5:00 p.m. on May 21, 2004.” Petitioner responded with a filing entitled “Objections to Experts’ Report, Renewed Motion for Funds To Hire Mental Health Expert and Investigator, Renewed Motion for Appointment of Counsel, and Motion for Competency Hearing” in Cause No. 3310 (May 24, 2004) (hereinafter Objections to Experts’ Report). In this filing petitioner criticized the methodology and conclusions of the court-appointed experts; asserted his continued need for a mental health expert as his own criticisms of the report were “by necessity limited,” id., at 1; again asked the court to rule on his outstanding motions for funds and appointment of counsel; and requested a competency hearing. Petitioner also argued, as a more general matter, that the process he had received thus far failed to comply with Art. 46.05 and the procedural mandates set by Ford. The court, in response, closed the case. On May 26, it released a short order identifying the report submitted by the court-appointed experts and explaining that “[b]ased on the aforesaid doctors’ reports, the Court finds that [petitioner] has failed to show, by a preponderance of the evidence, that he is incompetent to be executed.” Order Regarding Competency To Be Executed in Cause No. 3310, 1 App. 99. The order made no mention of petitioner’s motions or other filings. Petitioner did not appeal the ruling to the Court of Criminal Appeals, and he did not petition this Court for certiorari. This background leads to the matter now before us. Petitioner returned to federal court, seeking resolution of the §2254 petition he had filed on January 26. The District Court granted petitioner’s motions to reconsider, to stay his execution, to appoint counsel, and to provide funds. The court, in addition, set the case for an evidentiary hearing, which included testimony by a psychiatrist, a professor, and two psychologists, all called by petitioner, as well as two psychologists and three correctional officers, called by respondent. See 1 App. 117–135, 362–363; see also id., at 136–336. We describe the substance of the experts’ testimony in more detail later in our opinion. On September 29, 2004, the District Court denied petitioner’s habeas application on the merits. It concluded that the state trial court had failed to comply with Art. 46.05; found the state proceedings “constitutionally inadequate” in light of Ford; and reviewed petitioner’s Eighth Amendment claim without deferring to the state court’s finding of competency. Panetti v. Dretke, 401 F. Supp. 2d 702, 706, 705–706 (WD Tex. 2004). The court nevertheless denied relief. It found petitioner had not shown incompetency as defined by Circuit precedent. Id., at 712. “Ultimately,” the court explained, “the Fifth Circuit test for competency to be executed requires the petitioner know no more than the fact of his impending execution and the factual predicate for the execution.” Id., at 711. The Court of Appeals affirmed, Panetti v. Dretke, 448 F. 3d 815 (CA5 2006), and we granted certiorari, 549 U. S. ___ (2007). II We first consider our jurisdiction. The habeas corpus application on review is the second one petitioner has filed in federal court. Under the gatekeeping provisions of 28 U. S. C. §2244(b)(2), “[a] claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed” except under certain, narrow circumstances. See §§2244(b)(2)(A)–(B). The State maintains that, by direction of §2244, the District Court lacked jurisdiction to adjudicate petitioner’s §2254 application. Its argument is straightforward: “[Petitioner’s] first federal habeas application, which was fully and finally adjudicated on the merits, failed to raise a Ford claim,” and, as a result, “[his] subsequent habeas application, which did raise a Ford claim, was a ‘second or successive’ application” under the terms of §2244(b)(2). Supplemental Brief for Respondent 1. The State contends, moreover, that any Ford claim brought in an application governed by §2244’s gatekeeping provisions must be dismissed. See Supplemental Brief for Respondent 4–6 (citing §§2244(b)(2)(A)–(B)). The State acknowledges that Ford-based incompetency claims, as a general matter, are not ripe until after the time has run to file a first federal habeas petition. See Supplemental Brief for Respondent 6. The State nevertheless maintains that its rule would not foreclose prisoners from raising Ford claims. Under Stewart v. Martinez-Villareal, 523 U. S. 637 (1998), the State explains, a federal court is permitted to review a prisoner’s Ford claim once it becomes ripe if the prisoner preserved the claim by filing it in his first federal habeas application. Under the State’s approach a prisoner contemplating a future Ford claim could preserve it by this means. The State’s argument has some force. The results it would produce, however, show its flaws. As in Martinez-Villareal, if the State’s “interpretation of ‘second or successive’ were correct, the implications for habeas practice would be far reaching and seemingly perverse.” 523 U. S., at 644. A prisoner would be faced with two options: forgo the opportunity to raise a Ford claim in federal court; or raise the claim in a first federal habeas application (which generally must be filed within one year of the relevant state-court ruling), even though it is premature. The dilemma would apply not only to prisoners with mental conditions indicative of incompetency but also to those with no early sign of mental illness. All prisoners are at risk of deteriorations in their mental state. As a result, conscientious defense attorneys would be obliged to file unripe (and, in many cases, meritless) Ford claims in each and every §2254 application. This counterintuitive approach would add to the burden imposed on courts, applicants, and the States, with no clear advantage to any. We conclude there is another reasonable interpretation of §2244, one that does not produce these distortions and inefficiencies. The phrase “second or successive” is not self-defining. It takes its full meaning from our case law, including decisions predating the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. See Slack v. McDaniel, 529 U. S. 473, 486 (2000) (citing Martinez-Villareal, supra); see also Felker v. Turpin, 518 U. S. 651, 664 (1996). The Court has declined to interpret “second or successive” as referring to all §2254 applications filed second or successively in time, even when the later filings address a state-court judgment already challenged in a prior §2254 application. See, e.g., Slack, 529 U. S., at 487 (concluding that a second §2254 application was not “second or successive” after the petitioner’s first application, which had challenged the same state-court judgment, had been dismissed for failure to exhaust state remedies); see also id., at 486 (indicating that “pre-AEDPA law govern[ed]” the case before it but implying that the Court would reach the same result under AEDPA); see also Martinez-Villareal, supra, at 645. Our interpretation of §2244 in Martinez-Villareal is illustrative. There the prisoner filed his first habeas application before his execution date was set. In the first application he asserted, inter alia, that he was incompetent to be executed, citing Ford. The District Court, among other holdings, dismissed the claim as premature; and the Court of Appeals affirmed the ruling. When the State obtained a warrant for the execution, the prisoner filed, for the second time, a habeas application raising the same incompetency claim. The State argued that because the prisoner “already had one ‘fully-litigated habeas petition, the plain meaning of §2244(b) … requires his new petition to be treated as successive.’ ” 523 U. S., at 643. We rejected this contention. While the later filing “may have been the second time that [the prisoner] had asked the federal courts to provide relief on his Ford claim,” the Court declined to accept that there were, as a result, “two separate applications, [with] the second … necessarily subject to §2244(b).” Ibid. The Court instead held that, in light of the particular circumstances presented by a Ford claim, it would treat the two filings as a single application. The petitioner “was entitled to an adjudication of all the claims presented in his earlier, undoubtedly reviewable, application for federal habeas relief.” 523 U. S., at 643. Our earlier holding does not resolve the jurisdictional question in the instant case. Martinez-Villareal did not address the applicability of §2244(b) “where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner’s initial habeas application.” Id., at 645, n. Yet the Court’s willingness to look to the “implications for habeas practice” when interpreting §2244 informs the analysis here. Id., at 644. We conclude, in accord with this precedent, that Congress did not intend the provisions of AEDPA addressing “second or successive” petitions to govern a filing in the unusual posture presented here: a §2254 application raising a Ford-based incompetency claim filed as soon as that claim is ripe. Our conclusion is confirmed when we consider AEDPA’s purposes. The statute’s design is to “further the principles of comity, finality, and federalism.” Miller-El v. Cockrell, 537 U. S. 322, 337 (2003) (internal quotation marks omitted). Cf. Day v. McDonough, 547 U. S. 198, 205–206 (2006) (“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” (internal quotation marks omitted)). These purposes, and the practical effects of our holdings, should be considered when interpreting AEDPA. This is particularly so when petitioners “run the risk” under the proposed interpretation of “forever losing their opportunity for any federal review of their unexhausted claims.” Rhines v. Weber, 544 U. S. 269, 275 (2005). See also Castro v. United States, 540 U. S. 375, 381 (2003). In Rhines “[w]e recognize[d] the gravity of [the] problem” posed when petitioners file applications with only some claims exhausted, as well as “the difficulty [this problem has] posed for petitioners and federal district courts alike.” 544 U. S., at 275, 276. We sought to ensure our “solution to this problem [was] compatible with AEDPA’s purposes.” Id., at 276. And in Castro we resisted an interpretation of the statute that would “produce troublesome results,” “create procedural anomalies,” and “close our doors to a class of habeas petitioners seeking review without any clear indication that such was Congress’ intent.” 540 U. S., at 380, 381. See also Williams v. Taylor, 529 U. S. 420, 437 (2000); Johnson v. United States, 544 U. S. 295, 308–309 (2005); Duncan v. Walker, 533 U. S. 167, 178 (2001); cf. Granberry v. Greer, 481 U. S. 129, 131–134 (1987). An empty formality requiring prisoners to file unripe Ford claims neither respects the limited legal resources available to the States nor encourages the exhaustion of state remedies. See Duncan, supra, at 178. Instructing prisoners to file premature claims, particularly when many of these claims will not be colorable even at a later date, does not conserve judicial resources, “reduc[e] piecemeal litigation,” or “streamlin[e] federal habeas proceedings.” Burton v. Stewart, 549 U. S. ___, ___ (2007) (slip op., at 7) (per curiam) (internal quotation marks omitted). AEDPA’s concern for finality, moreover, is not implicated, for under none of the possible approaches would federal courts be able to resolve a prisoner’s Ford claim before execution is imminent. See Martinez-Villareal, supra, at 644–645 (acknowledging that the District Court was unable to resolve the prisoner’s incompetency claim at the time of his initial habeas filing). And last-minute filings that are frivolous and designed to delay executions can be dismissed in the regular course. The requirement of a threshold preliminary showing, for instance, will, as a general matter, be imposed before a stay is granted or the action is allowed to proceed. There is, in addition, no argument that petitioner’s actions constituted an abuse of the writ, as that concept is explained in our cases. Cf. Felker, 518 U. S., at 664 (“[AEDPA’s] new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice ‘abuse of the writ’ ”). To the contrary, we have confirmed that claims of incompetency to be executed remain unripe at early stages of the proceedings. See Martinez-Villareal, 523 U. S., at 644–645; see also ibid. (suggesting that it is therefore appropriate, as a general matter, for a prisoner to wait before seeking resolution of his incompetency claim); Ford v. Wainwright, 477 U. S. 399 (remanding the case to the District Court to resolve Ford’s incompetency claim, even though Ford had brought that claim in a second federal habeas petition); Barnard v. Collins, 13 F. 3d 871, 878 (CA5 1994) (“[O]ur research indicates no reported decision in which a federal circuit court or the Supreme Court has denied relief of a petitioner’s competency-to-be-executed claim on grounds of abuse of the writ”). See generally McCleskey v. Zant, 499 U. S. 467, 489–497 (1991). In the usual case, a petition filed second in time and not otherwise permitted by the terms of §2244 will not survive AEDPA’s “second or successive” bar. There are, however, exceptions. We are hesitant to construe a statute, implemented to further the principles of comity, finality, and federalism, in a manner that would require unripe (and, often, factually unsupported) claims to be raised as a mere formality, to the benefit of no party. The statutory bar on “second or successive” applications does not apply to a Ford claim brought in an application filed when the claim is first ripe. Petitioner’s habeas application was properly filed, and the District Court had jurisdiction to adjudicate his claim. III A Petitioner claims that the Eighth and Fourteenth Amendments of the Constitution, as elaborated by Ford, entitled him to certain procedures not provided in the state court; that the failure to provide these procedures constituted an unreasonable application of clearly established Supreme Court law; and that under §2254(d) this misapplication of Ford allows federal-court review of his incompetency claim without deference to the state court’s decision. We agree with petitioner that no deference is due. The state court’s failure to provide the procedures mandated by Ford constituted an unreasonable application of clearly established law as determined by this Court. It is uncontested that petitioner made a substantial showing of incompetency. This showing entitled him to, among other things, an adequate means by which to submit expert psychiatric evidence in response to the evidence that had been solicited by the state court. And it is clear from the record that the state court reached its competency determination after failing to provide petitioner with this process, notwithstanding counsel’s sustained effort, diligence, and compliance with court orders. As a result of this error, our review of petitioner’s underlying incompetency claim is unencumbered by the deference AEDPA normally requires. Ford identifies the measures a State must provide when a prisoner alleges incompetency to be executed. The four-Justice plurality in Ford concluded as follows: “Although the condemned prisoner does not enjoy the same presumptions accorded a defendant who has yet to be convicted or sentenced, he has not lost the protection of the Constitution altogether; if the Constitution renders the fact or timing of his execution contingent upon establishment of a further fact, then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being. Thus, the ascertainment of a prisoner’s sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any other aspect of a capital proceeding.” 477 U. S., at 411–412. Justice Powell’s concurrence, which also addressed the question of procedure, offered a more limited holding. When there is no majority opinion, the narrower holding controls. See Marks v. United States, 430 U. S. 188, 193 (1977). Under this rule Justice Powell’s opinion constitutes “clearly established” law for purposes of §2254 and sets the minimum procedures a State must provide to a prisoner raising a Ford-based competency claim. Justice Powell’s opinion states the relevant standard as follows. Once a prisoner seeking a stay of execution has made “a substantial threshold showing of insanity,” the protection afforded by procedural due process includes a “fair hearing” in accord with fundamental fairness. Ford, 477 U. S., at 426, 424 (opinion concurring in part and concurring in judgment) (internal quotation marks omitted). This protection means a prisoner must be accorded an “opportunity to be heard,” id., at 424 (internal quotation marks omitted), though “a constitutionally acceptable procedure may be far less formal than a trial,” id., at 427. As an example of why the state procedures on review in Ford were deficient, Justice Powell explained, the determination of sanity “appear[ed] to have been made solely on the basis of the examinations performed by state-appointed psychiatrists.” Id., at 424. “Such a procedure invites arbitrariness and error by preventing the affected parties from offering contrary medical evidence or even from explaining the inadequacies of the State’s examinations.” Ibid. Justice Powell did not set forth “the precise limits that due process imposes in this area.” Id., at 427. He observed that a State “should have substantial leeway to determine what process best balances the various interests at stake” once it has met the “basic requirements” required by due process. Ibid. These basic requirements include an opportunity to submit “evidence and argument from the prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s own psychiatric examination.” Ibid. Petitioner was entitled to these protections once he had made a “substantial threshold showing of insanity.” Id., at 426. He made this showing when he filed his Renewed Motion To Determine Competency—a fact disputed by no party, confirmed by the trial court’s appointment of mental health experts pursuant to Article 46.05(f), and verified by our independent review of the record. The Renewed Motion included pointed observations made by two experts the day before petitioner’s scheduled execution; and it incorporated, through petitioner’s first Motion To Determine Competency, references to the extensive evidence of mental dysfunction considered in earlier legal proceedings. In light of this showing, the state court failed to provide petitioner with the minimum process required by Ford. The state court refused to transcribe its proceedings, notwithstanding the multiple motions petitioner filed requesting this process. To the extent a more complete record may have put some of the court’s actions in a more favorable light, this only constitutes further evidence of the inadequacy of the proceedings. Based on the materials available to this Court, it appears the state court on repeated occasions conveyed information to petitioner’s counsel that turned out not to be true; provided at least one significant update to the State without providing the same notice to petitioner; and failed in general to keep petitioner informed as to the opportunity, if any, he would have to present his case. There is also a strong argument the court violated state law by failing to provide a competency hearing. See Tex. Code Crim. Proc. Ann., Art. 46.05(k). If this did, in fact, constitute a violation of the procedural framework Texas has mandated for the adjudication of incompetency claims, the violation undermines any reliance the State might now place on Justice Powell’s assertion that “the States should have substantial leeway to determine what process best balances the various interests at stake.” Ford, supra, at 427. See also, e.g., Brief for Respondent 16. What is more, the order issued by the state court implied that its determination of petitioner’s competency was made solely on the basis of the examinations performed by the psychiatrists it had appointed—precisely the sort of adjudication Justice Powell warned would “invit[e] arbitrariness and error,” Ford, supra, at 424. The state court made an additional error, one that Ford makes clear is impermissible under the Constitution: It failed to provide petitioner with an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts. The court mailed the experts’ report to both parties in the first week of May. The report, which rejected the factual basis for petitioner’s claim, set forth new allegations suggesting that petitioner’s bizarre behavior was due, at least in part, to deliberate design rather than mental illness. Petitioner’s counsel reached the reasonable conclusion that these allegations warranted a response. See Objections to Experts’ Report 13, and n. 1. On May 14 the court told petitioner’s counsel, by letter, to file “any other matters you wish to have considered” within a week. Petitioner, in response, renewed his motions for an evidentiary hearing, funds to hire a mental health expert, and other relief. He did not submit at that time expert psychiatric evidence to challenge the court-appointed experts’ report, a decision that in context made sense: The court had said it would rule on his outstanding motions, which included a request for funds to hire a mental-health expert and a request for an evidentiary hearing, once the court-appointed experts had completed their evaluation. Counsel was justified in relying on this representation by the court. Texas law, moreover, provides that a court’s finding of incompetency will be made on the basis of, inter alia, a “final competency hearing.” Tex. Code Crim. Proc. Ann., Art. 46.05(k); see also Ex parte Caldwell, 58 S. W. 3d 127, 129, 130 (Tex. Crim. App. 2000) (confirming that the “legislature codified the dictates of Ford by enacting [the precursor to Art. 46.05]” and indicating that “[t]he determination of whether to appoint experts and conduct a hearing is within the discretion of the trial court” before a petitioner has made a substantial showing of incompetency). Had the court advised counsel it would resolve the case without first ruling on petitioner’s motions and without holding a competency hearing, petitioner’s counsel might have managed to procure the assistance of experts, as he had been able to do on a pro bono basis the day before petitioner’s previously scheduled execution. It was, in any event, reasonable for counsel to refrain from procuring and submitting expert psychiatric evidence while waiting for the court to rule on the timely filed motions, all in reliance on the court’s assurances. But at this point the court simply ended the matter. The state court failed to provide petitioner with a constitutionally adequate opportunity to be heard. After a prisoner has made the requisite threshold showing, Ford requires, at a minimum, that a court allow a prisoner’s counsel the opportunity to make an adequate response to evidence solicited by the state court. See 477 U. S., at 424, 427. In petitioner’s case this meant an opportunity to submit psychiatric evidence as a counterweight to the report filed by the court-appointed experts. Id., at 424. Yet petitioner failed to receive even this rudimentary process. In light of this error we need not address whether other procedures, such as the opportunity for discovery or for the cross-examination of witnesses, would in some cases be required under the Due Process Clause. As Ford makes clear, the procedural deficiencies already identified constituted a violation of petitioner’s federal rights. B The state court’s denial of certain of petitioner’s motions rests on an implicit finding: that the procedures it provided were adequate to resolve the competency claim. In light of the procedural history we have described, however, this determination cannot be reconciled with any reasonable application of the controlling standard in Ford. That the standard is stated in general terms does not mean the application was reasonable. AEDPA does not “require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.” Carey v. Musladin, 549 U. S. ___, ___ (2006) (slip op., at 2) (Kennedy, J., concurring in judgment). Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts “different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U. S. 63, 76 (2003). The statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner. See, e.g., Williams v. Taylor, 529 U. S. 362 (finding a state-court decision both contrary to and involving an unreasonable application of the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984)). These principles guide a reviewing court that is faced, as we are here, with a record that cannot, under any reasonable interpretation of the controlling legal standard, support a certain legal ruling. Under AEDPA, a federal court may grant habeas relief, as relevant, only if the state court’s “adjudication of [a] claim on the merits … resulted in a decision that … involved an unreasonable application” of the relevant law. When a state court’s adjudication of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth in §2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference AEDPA otherwise requires. See Wiggins v. Smith, 539 U. S. 510, 534 (2003) (performing the analysis required under Strickland’s second prong without deferring to the state court’s decision because the state court’s resolution of Strickland’s first prong involved an unreasonable application of law); id., at 527–529 (confirming that the state court’s ultimate decision to reject the prisoner’s ineffective-assistance-of-counsel claim was based on the first prong and not the second). See also Williams, supra, at 395–397; Early v. Packer, 537 U. S. 3, 8 (2002) (per curiam) (indicating that §2254 does not preclude relief if either “the reasoning [or] the result of the state-court decision contradicts [our cases]”). Here, due to the state court’s unreasonable application of Ford, the factfinding procedures upon which the court relied were “not adequate for reaching reasonably correct results” or, at a minimum, resulted in a process that appeared to be “seriously inadequate for the ascertainment of the truth.” 477 U. S., at 423–424 (Powell, J., concurring in part and concurring in judgment) (internal quotation marks omitted). We therefore consider petitioner’s claim on the merits and without deferring to the state court’s finding of competency. IV A This brings us to the question petitioner asks the Court to resolve: whether the Eighth Amendment permits the execution of a prisoner whose mental illness deprives him of “the mental capacity to understand that [he] is being executed as a punishment for a crime.” Brief for Petitioner 31. A review of the expert testimony helps frame the issue. Four expert witnesses testified on petitioner’s behalf in the District Court proceedings. One explained that petitioner’s mental problems are indicative of “schizo-affective disorder,” 1 App. 143, resulting in a “genuine delusion” involving his understanding of the reason for his execution, id., at 157. According to the expert, this delusion has recast petitioner’s execution as “part of spiritual warfare … between the demons and the forces of the darkness and God and the angels and the forces of light.” Id., at 149. As a result, the expert explained, although petitioner claims to understand “that the state is saying that [it wishes] to execute him for [his] murder[s],” he believes in earnest that the stated reason is a “sham” and the State in truth wants to execute him “to stop him from preaching.” Ibid. Petitioner’s other expert witnesses reached similar conclusions concerning the strength and sincerity of this “fixed delusion.” Id., at 203; see also id., at 202, 231–232, 333. While the State’s expert witnesses resisted the conclusion that petitioner’s stated beliefs were necessarily indicative of incompetency, see id., at 240, 247, 304, particularly in light of his perceived ability to understand certain concepts and, at times, to be “clear and lucid,” id., at 243; see also id., at 244, 304, 312, they acknowledged evidence of mental problems, see id., at 239, 245, 308. Petitioner’s rebuttal witness attempted to reconcile the experts’ testimony: “Well, first, you have to understand that when somebody is schizophrenic, it doesn’t diminish their cognitive ability… . Instead, you have a situation where—and why we call schizophrenia thought dis- order[—]the logical integration and reality connection of their thoughts are disrupted, so the stimulus comes in, and instead of being analyzed and processed in a rational, logical, linear sort of way, it gets scrambled up and it comes out in a tangential, circumstantial, symbolic … not really relevant kind of way. That’s the essence of somebody being schizophrenic… . Now, it may be that if they’re dealing with someone who’s more familiar … [in] what may feel like a safer, more enclosed environment … those sorts of interactions may be reasonably lucid whereas a more extended conversation about more loaded material would reflect the severity of his mental illness.” Id., at 328–329. See also id., at 203 (suggesting that an unmedicated individual suffering from schizophrenia can “at times” hold an ordinary conversation and that “it depends [whether the discussion concerns the individual’s] fixed delusional system”). There is, in short, much in the record to support the conclusion that petitioner suffers from severe delusions. See, e.g., 1 App. 157, 149, 202–203, 231–232, 328–329, 333; see generally id., at 136–353. The legal inquiry concerns whether these delusions can be said to render him incompetent. The Court of Appeals held that they could not. That holding, we conclude, rests on a flawed interpretation of Ford. The Court of Appeals stated that competency is determined by whether a prisoner is aware “ ‘that he [is] going to be executed and why he [is] going to be executed,’ ” 448 F. 3d, at 819 (quoting Barnard, 13 F. 3d, at 877); see also 448 F. 3d, at 818 (discussing Ford, 477 U. S., at 421–422 (Powell, J., concurring in part and concurring in judgment)). To this end, the Court of Appeals identified the relevant District Court findings as follows: first, petitioner is aware that he committed the murders; second, he is aware that he will be executed; and, third, he is aware that the reason the State has given for the execution is his commission of the crimes in question. 448 F. 3d, at 817. Under Circuit precedent this ends the analysis as a matter of law; for the Court of Appeals regards these three factual findings as necessarily demonstrating that a prisoner is aware of the reason for his execution. The Court of Appeals concluded that its standard foreclosed petitioner from establishing incompetency by the means he now seeks to employ: a showing that his mental illness obstructs a rational understanding of the State’s reason for his execution. Id., at 817–818. As the court explained, “[b]ecause we hold that ‘awareness,’ as that term is used in Ford, is not necessarily synonymous with ‘rational understanding,’ as argued by [petitioner,] we conclude that the district court’s findings are sufficient to establish that [petitioner] is competent to be executed.” Id., at 821. In our view the Court of Appeals’ standard is too restrictive to afford a prisoner the protections granted by the Eighth Amendment. The opinions in Ford, it must be acknowledged, did not set forth a precise standard for competency. The four-Justice plurality discussed the substantive standard at a high level of generality; and Justice Powell wrote only for himself when he articulated more specific criteria. Yet in the portion of Justice Marshall’s discussion constituting the opinion of the Court (the portion Justice Powell joined) the majority did reach the express conclusion that the Constitution “places a substantive restriction on the State’s power to take the life of an insane prisoner.” Ford, 477 U. S., at 405. The Court stated the foundation for this principle as follows: “[T]oday, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life… . Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply of-fends humanity is evidently shared across this Nation. Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Id., at 409–410. Writing for four Justices, Justice Marshall concluded by indicating that the Eighth Amendment prohibits execution of “one whose mental illness prevents him from comprehending the reasons for the penalty or its implications.” Id., at 417. Justice Powell, in his separate opinion, asserted that the Eighth Amendment “forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it,” id., at 422. The Court of Appeals’ standard treats a prisoner’s delusional belief system as irrelevant if the prisoner knows that the State has identified his crimes as the reason for his execution. See 401 F. Supp. 2d, at 712 (indicating that under Circuit precedent “a petitioner’s delusional beliefs—even those which may result in a fundamental failure to appreciate the connection between the petitioner’s crime and his execution—do not bear on the question of whether the petitioner ‘knows the reason for his execution’ for the purposes of the Eighth Amendment”); see also id., at 711–712. Yet the Ford opinions nowhere indicate that delusions are irrelevant to “comprehen[sion]’ or “aware[ness]” if they so impair the prisoner’s concept of reality that he cannot reach a rational understanding of the reason for the execution. If anything, the Ford majority suggests the opposite. Explaining the prohibition against executing a prisoner who has lost his sanity, Justice Marshall in the controlling portion of his opinion set forth various rationales, including recognition that “the execution of an insane person simply offends humanity,” id., at 407; that it “provides no example to others,” ibid.; that “it is uncharitable to dispatch an offender into another world, when he is not of a capacity to fit himself for it,” ibid. (internal quotation marks omitted); that “madness is its own punishment,” ibid.; and that executing an insane person serves no retributive purpose, id., at 408. Considering the last—whether retribution is served—it might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and 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. The potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called in question, however, if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole. This problem is not necessarily overcome once the test set forth by the Court of Appeals is met. And under a similar logic the other rationales set forth by Ford fail to align with the distinctions drawn by the Court of Appeals. Whether Ford’s inquiry into competency is formulated as a question of the prisoner’s ability to “comprehen[d] the reasons” for his punishment or as a determination into whether he is “unaware of … why [he is] to suffer it,” then, the approach taken by the Court of Appeals is inconsistent with Ford. The principles set forth in Ford are put at risk by a rule that deems delusions relevant only with respect to the State’s announced reason for a punishment or the fact of an imminent execution, see 448 F. 3d, at 819, 821, as opposed to the real interests the State seeks to vindicate. We likewise find no support elsewhere in Ford, including in its discussions of the common law and the state standards, for the proposition that a prisoner is automatically foreclosed from demonstrating incompetency once a court has found he can identify the stated reason for his execution. A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. This is not to deny the fact that a concept like rational understanding is difficult to define. And we must not ignore the concern that some prisoners, whose cases are not implicated by this decision, will fail to understand why they are to be punished on account of reasons other than those stemming from a severe mental illness. The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered “normal,” or even “rational,” in a layperson’s understanding of those terms. Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder. Petitioner’s submission is that he suffers from a severe, documented mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced. This argument, we hold, should have been considered. The flaws of the Court of Appeals’ test are pronounced in petitioner’s case. Circuit precedent required the District Court to disregard evidence of psychological dysfunction that, in the words of the judge, may have resulted in petitioner’s “fundamental failure to appreciate the connection between the petitioner’s crime and his execution.” 401 F. Supp. 2d, at 712. To refuse to consider evidence of this nature is to mistake Ford’s holding and its logic. Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted. B Although we reject the standard followed by the Court of Appeals, we do not attempt to set down a rule governing all competency determinations. The record is not as informative as it might be, even on the narrower issue of how a mental illness of the sort alleged by petitioner might affect this analysis. In overseeing the development of the record and in making its factual findings, the District Court found itself bound to analyze the question of competency in the terms set by Circuit precedent. It acknowledged, for example, the “difficult issue” posed by the delusions allegedly interfering with petitioner’s understanding of the reason behind his execution, 401 F. Supp. 2d, at 712, but it refrained from making definitive findings of fact with respect to these matters, see id., at 709. See also id., at 712 (identifying testimony by Dr. Mark Cunningham indicating that petitioner “believes the State is in league with the forces of evil that have conspired against him” and, as a result, “does not even understand that the State of Texas is a lawfully constituted authority,” but refraining from setting forth definitive findings of fact concerning whether this was an accurate characterization of petitioner’s mindset). The District Court declined to consider the significance those findings might have on the ultimate question of competency under the Eighth Amendment. See ibid. (disregarding Dr. Cunningham’s testimony in light of Circuit precedent). And notwithstanding the numerous questions the District Court asked of the witnesses, see, e.g., 1 App. 191–197, 216–218, 234–237, 321–323, it did not press the experts on the difficult issue it identified in its opinion, see ibid. The District Court, of course, was bound by Circuit precedent, and the record was developed pursuant to a standard we have found to be improper. As a result, we find it difficult to amplify our conclusions or to make them more precise. We are also hesitant to decide a question of this complexity before the District Court and the Court of Appeals have addressed, in a more definitive manner and in light of the expert evidence found to be probative, the nature and severity of petitioner’s alleged mental problems. The underpinnings of petitioner’s claims should be explained and evaluated in further detail on remand. The conclusions of physicians, psychiatrists, and other experts in the field will bear upon the proper analysis. Expert evidence may clarify the extent to which severe delusions may render a subject’s perception of reality so distorted that he should be deemed incompetent. Cf. Brief for American Psychological Association et al. as Amici Curiae 17–19 (discussing the ways in which mental health experts can inform competency determinations). And there is precedent to guide a court conducting Eighth Amendment analysis. See, e.g., Roper v. Simmons, 543 U. S. 551, 560–564 (2005); Atkins v. Virginia, 536 U. S. 304, 311–314 (2002); Ford, 477 U. S., at 406–410. It is proper to allow the court charged with overseeing the development of the evidentiary record in this case the initial opportunity to resolve petitioner’s constitutional claim. These issues may be resolved in the first instance by the District Court. * * * 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.
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551.US.701
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Respondent school districts voluntarily adopted student assignment plans that rely on race to determine which schools certain children may attend. The Seattle district, which has never operated legally segregated schools or been subject to court-ordered desegregation, classified children as white or nonwhite, and used the racial classifications as a “tiebreaker” to allocate slots in particular high schools. The Jefferson County, Ky., district was subject to a desegregation decree until 2000, when the District Court dissolved the decree after finding that the district had eliminated the vestiges of prior segregation to the greatest extent practicable. In 2001, the district adopted its plan classifying students as black or “other” in order to make certain elementary school assignments and to rule on transfer requests. Petitioners, an organization of Seattle parents (Parents Involved) and the mother of a Jefferson County student (Joshua), whose children were or could be assigned under the foregoing plans, filed these suits contending, inter alia, that allocating children to different public schools based solely on their race violates the Fourteenth Amendment’s equal protection guarantee. In the Seattle case, the District Court granted the school district summary judgment, finding, inter alia, that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit affirmed. In the Jefferson County case, the District Court found that the school district had asserted a compelling interest in maintaining racially diverse schools, and that its plan was, in all relevant respects, narrowly tailored to serve that interest. The Sixth Circuit affirmed. Held: The judgments are reversed, and the cases are remanded. No. 05–908, 426 F. 3d 1162; No. 05–915, 416 F. 3d 513, reversed and remanded. The Chief Justice delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, concluding: 1. The Court has jurisdiction in these cases. Seattle argues that Parents Involved lacks standing because its current members’ claimed injuries are not imminent and are too speculative in that, even if the district maintains its current plan and reinstitutes the racial tiebreaker, those members will only be affected if their children seek to enroll in a high school that is oversubscribed and integration positive. This argument is unavailing; the group’s members have children in all levels of the district’s schools, and the complaint sought declaratory and injunctive relief on behalf of members whose elementary and middle school children may be denied admission to the high schools of their choice in the future. The fact that those children may not be denied such admission based on their race because of undersubscription or oversubscription that benefits them does not eliminate the injury claimed. The group also asserted an interest in not being forced to compete in a race-based system that might prejudice its members’ children, an actionable form of injury under the Equal Protection Clause, see, e.g., Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 211. The fact that Seattle has ceased using the racial tiebreaker pending the outcome here is not dispositive, since the district vigorously defends its program’s constitutionality, and nowhere suggests that it will not resume using race to assign students if it prevails. See Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189. Similarly, the fact that Joshua has been granted a transfer does not eliminate the Court’s jurisdiction; Jefferson County’s racial guidelines apply at all grade levels and he may again be subject to race-based assignment in middle school. Pp. 9–11. 2. The school districts have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme means they have chosen—discriminating among individual students based on race by relying upon racial classifications in making school assignments. Pp. 11–17, 25–28. (a) Because “racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification,” Fullilove v. Klutznick, 448 U. S. 448, 537 (Stevens, J., dissenting), governmental distributions of burdens or benefits based on individual racial classifications are reviewed under strict scrutiny, e.g., Johnson v. California, 543 U. S. 499, 505–506. Thus, the school districts must demonstrate that their use of such classifications is “narrowly tailored” to achieve a “compelling” government interest. Adarand, supra, at 227. Although remedying the effects of past intentional discrimination is a compelling interest under the strict scrutiny test, see Freeman v. Pitts, 503 U. S. 467, 494, that interest is not involved here because the Seattle schools were never segregated by law nor subject to court-ordered desegregation, and the desegregation decree to which the Jefferson County schools were previously subject has been dissolved. Moreover, these cases are not governed by Grutter v. Bollinger, 539 U. S. 306, 328, in which the Court held that, for strict scrutiny purposes, a government interest in student body diversity “in the context of higher education” is compelling. That interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity,” id., at 337, including, e.g., having “overcome personal adversity and family hardship,” id., at 338. Quoting Justice Powell’s articulation of diversity in Regents of the University of California v. Bakke, 438 U. S. 265, 314–315, the Grutter Court noted that “ ‘it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,’ that can justify the use of race,” 539 U. S., at 324–325, but “ ‘a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element, ’ ” id., at 325. In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” id., at 330; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. See Gratz v. Bollinger, 539 U. S. 244, 275. Even as to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County. The Grutter Court expressly limited its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to the sort of classifications at issue here. Pp. 11–17. (b) Despite the districts’ assertion that they employed individual racial classifications in a way necessary to achieve their stated ends, the minimal effect these classifications have on student assignments suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Similarly, Jefferson County admits that its use of racial classifications has had a minimal effect, and claims only that its guidelines provide a firm definition of the goal of racially integrated schools, thereby providing administrators with authority to collaborate with principals and staff to maintain schools within the desired range. Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of this Court’s precedents and the Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it. In Grutter, in contrast, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school there at issue. See 539 U. S., at 320. While the Court does not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using such classifications. The districts have also failed to show they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” id., at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Pp. 25–28. the Chief Justice, joined by Justice Scalia, Justice Thomas, and Justice Alito, concluded for additional reasons in Parts III–B and IV that the plans at issue are unconstitutional under this Court’s precedents. Pp. 17–25, 28–41. 1. The Court need not resolve the parties’ dispute over whether racial diversity in schools has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits because it is clear that the racial classifications at issue are not narrowly tailored to the asserted goal. In design and operation, the plans are directed only to racial balance, an objective this Court has repeatedly condemned as illegitimate. They are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. Whatever those demographics happen to be drives the required “diversity” number in each district. The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective districts, or rather the districts’ white/nonwhite or black/“other” balance, since that is the only diversity addressed by the plans. In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body, 539 U. S., at 316, 335–336, and the Court concluded that the law school did not count back from its applicant pool to arrive at that number, id., at 335–336. Here, in contrast, the schools worked backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits. This is a fatal flaw under the Court’s existing precedent. See, e.g., Freeman, supra, at 494. Accepting racial balancing as a compelling state interest would justify imposing racial proportionality throughout American society, contrary to the Court’s repeated admonitions that this is unconstitutional. While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration—they offer no definition suggesting that their interest differs from racial balancing. Pp. 17–25. 2. If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. Government action dividing people by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U. S. 630, 657, and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict,” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603 (O’Connor, J., dissenting). When it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U. S. 483, the Court held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because the classification and separation themselves denoted inferiority. Id., at 493–494. It was not the inequality of the facilities but the fact of legally separating children based on race on which the Court relied to find a constitutional violation in that case. Id., at 494. The districts here invoke the ultimate goal of those who filed Brown and subsequent cases to support their argument, but the argument of the plaintiff in Brown was that the Equal Protection Clause “prevents states from according differential treatment to American children on the basis of their color or race,” and that view prevailed—this Court ruled in its remedial opinion that Brown required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown v. Board of Education, 349 U. S. 294, 300–301 (emphasis added). Pp. 28–41. Justice Kennedy agreed that the Court has jurisdiction to decide these cases and that respondents’ student assignment plans are not narrowly tailored to achieve the compelling goal of diversity properly defined, but concluded that some parts of the plurality opinion imply an unyielding insistence that race cannot be a factor in instances when it may be taken into account. Pp. 1–9. (a) As part of its burden of proving that racial classifications are narrowly tailored to further compelling interests, the government must establish, in detail, how decisions based on an individual student’s race are made in a challenged program. The Jefferson County Board of Education fails to meet this threshold mandate when it concedes it denied Joshua’s requested kindergarten transfer on the basis of his race under its guidelines, yet also maintains that the guidelines do not apply to kindergartners. This discrepancy is not some simple and straightforward error that touches only upon the peripheries of the district’s use of individual racial classifications. As becomes clearer when the district’s plan is further considered, Jefferson County has explained how and when it employs these classifications only in terms so broad and imprecise that they cannot withstand strict scrutiny. In its briefing it fails to make clear—even in the limited respects implicated by Joshua’s initial assignment and transfer denial—whether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the government. In the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions based on individual racial classifications, but it has nevertheless failed to explain why, in a district composed of a diversity of races, with only a minority of the students classified as “white,” it has employed the crude racial categories of “white” and “non-white” as the basis for its assignment decisions. Far from being narrowly tailored, this system threatens to defeat its own ends, and the district has provided no convincing explanation for its design. Pp. 2–6. (b) The plurality opinion is too dismissive of government’s legitimate interest in ensuring that all people have equal opportunity regardless of their race. In administering public schools, it is permissible to consider the schools’ racial makeup and adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U. S. 306. School authorities concerned that their student bodies’ racial compositions interfere with offering an equal educational opportunity to all are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion based solely on a systematic, individual typing by race. Such measures may include strategic site selection of new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. Each respondent has failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts. Cf. Richmond v. J. A. Croson Co., 488 U. S. 469, 501. In these cases, the fact that the number of students whose assignment depends on express racial classifications is small suggests that the schools could have achieved their stated ends through different means, including the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter, though the criteria relevant to student placement would differ based on the students’ age, the parents’ needs, and the schools’ role. Pp. 6–9. Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and an opinion with respect to Parts III–B and IV, in which Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined. Together with No. 05–915, Meredith, Custodial Parent and Next Friend of McDonald v. Jefferson County Bd. of Ed et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.
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opinion relying upon the reasoning of the District Court, concluding that a written opinion “would serve no useful purpose.” McFarland v. Jefferson Cty. Public Schools, 416 F. 3d 513, 514 (2005) (McFarland II). We granted certiorari. 547 U. S. __ (2006). II As a threshold matter, we must assure ourselves of our jurisdiction. Seattle argues that Parents Involved lacks standing because none of its current members can claim an imminent injury. Even if the district maintains the current plan and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school and choose an oversubscribed school that is integration positive—too speculative a harm to maintain standing. Brief for Respondents in No. 05–908, pp. 16–17. This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, App. in No. 05–908, at 299a–301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05–908, at 30a. The fact that it is possible that children of group members will not be denied admission to a school based on their race—because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage—does not eliminate the injury claimed. Moreover, Parents Involved also asserted an interest in not being “forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions.” Ibid. As we have held, one form of injury under the Equal Protection Clause is being forced to compete in a race-based system that may prejudice the plaintiff, Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993), an injury that the members of Parents Involved can validly claim on behalf of their children. In challenging standing, Seattle also notes that it has ceased using the racial tiebreaker pending the outcome of this litigation. Brief for Respondents in No. 05–908, at 16–17. But the district vigorously defends the constitutionality of its race-based program, and nowhere suggests that if this litigation is resolved in its favor it will not resume using race to assign students. Voluntary cessation does not moot a case or controversy unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met. Jefferson County does not challenge our jurisdiction, Tr. of Oral Arg. in No. 05–915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). Although apparently Joshua has now been granted a transfer to Bloom, the school to which transfer was denied under the racial guidelines, Tr. of Oral Arg. in No. 05–915, at 45, the racial guidelines apply at all grade levels. Upon Joshua’s enrollment in middle school, he may again be subject to assignment based on his race. In addition, Meredith sought damages in her complaint, which is sufficient to preserve our ability to consider the question. Los Angeles v. Lyons, 461 U. S. 95, 109 (1983). III A It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Johnson v. California, 543 U. S. 499, 505–506 (2005); Grutter v. Bollinger, 539 U. S. 306, 326 (2003); Adarand, supra, at 224. As the Court recently reaffirmed, “ ‘racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’ ” Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (quoting Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (Stevens, J., dissenting); brackets omitted). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand, supra, at 227. Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. See Freeman v. Pitts, 503 U. S. 467, 494 (1992). Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees. The Jefferson County public schools were previously segregated by law and were subject to a desegregation decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson County had “eliminated the vestiges associated with the former policy of segregation and its pernicious effects,” and thus had achieved “unitary” status. Hampton, 102 F. Supp. 2d, at 360. Jefferson County accordingly does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students. See Tr. of Oral Arg. in No. 05–915, at 38. Nor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that “the Constitution is not violated by racial imbalance in the schools, without more.” Milliken v. Bradley, 433 U. S. 267, 280, n. 14 (1977). See also Freeman, supra, at 495–496; Dowell, 498 U. S., at 248; Milliken v. Bradley, 418 U. S. 717, 746 (1974). Once Jefferson County achieved unitary status, it had remedied the constitutional wrong that allowed race-based assignments. Any continued use of race must be justified on some other basis.[Footnote 10] The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter, 539 U. S., at 328. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” Ibid. The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” Id., at 337. We described the various types of diversity that the law school sought: “[The law school’s] policy makes clear there are many possible bases for diversity admissions, and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.” Id., at 338 (brackets and internal quotation marks omitted). The Court quoted the articulation of diversity from Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U. S. 265 (1978), noting that “it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race.” Grutter, supra, at 324–325 (citing and quoting Bakke, supra, at 314–315 (opinion of Powell, J.); brackets and internal quotation marks omitted). Instead, what was upheld in Grutter was consideration of “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” 539 U. S., at 325 (quoting Bakke, supra, at 315 (opinion of Powell, J.); internal quotation marks omitted). The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review,” 539 U. S., at 337. As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” Ibid. The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.” Id., at 330. In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” ibid.; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz, 539 U. S., at 275, the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way. Id., at 276, 280 (O’Connor, J., concurring). Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County.[Footnote 11] But see Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 610 (1990) (“We are a Nation not of black and white alone, but one teeming with divergent communities knitted together with various traditions and carried forth, above all, by individuals”) (O’Connor, J., dissenting). The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in “[p]roviding students the opportunity to attend schools with diverse student enrollment,” App. in No. 05–908, at 128a, 129a. But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “ ‘broadly diverse,’ ” Grutter, supra, at 329. Prior to Grutter, the courts of appeals rejected as unconstitutional attempts to implement race-based assignment plans—such as the plans at issue here—in primary and secondary schools. See, e.g., Eisenberg v. Montgomery Cty. Public Schools, 197 F. 3d 123, 133 (CA4 1999); Tuttle v. Arlington Cty. School Bd., 195 F. 3d 698, 701 (CA4 1999); Wessman v. Gittens, 160 F. 3d 790, 809 (CA1 1998). See also Ho v. San Francisco Unified School Dist., 147 F. 3d 854, 865 (CA9 1998). After Grutter, however, the two Courts of Appeals in these cases, and one other, found that race-based assignments were permissible at the elementary and secondary level, largely in reliance on that case. See Parents Involved VII, 426 F. 3d, at 1166; McFarland II, 416 F. 3d, at 514; Comfort v. Lynn School Comm., 418 F. 3d 1, 13 (CA1 2005). In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” 539 U. S., at 329. See also Bakke, supra, at 312, 313 (opinion of Powell, J.). The Court explained that “[c]ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” Grutter, supra, at 327, 328, 334. The Court in Grutter expressly articulated key limitations on its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter. B Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Brief for Respondents in No. 05–908, at 19. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment.” App. in No. 05–915, at 22.[Footnote 12] Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contends that because the diversity they seek is racial diversity—not the broader diversity at issue in Grutter—it makes sense to promote that interest directly by relying on race alone. The parties and their amici dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits. The debate is not one we need to resolve, however, because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate. The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. In Seattle, the district seeks white enrollment of between 31 and 51 percent (within 10 percent of “the district white average” of 41 percent), and nonwhite enrollment of between 49 and 69 percent (within 10 percent of “the district minority average” of 59 percent). App. in No. 05–908, at 103a. In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or more than 50 percent, a range designed to be “equally above and below Black student enrollment systemwide,” McFarland I, 330 F. Supp. 2d, at 842, based on the objective of achieving at “all schools … an African-American enrollment equivalent to the average district-wide African-American enrollment” of 34 percent. App. in No. 05–915, at 81. In Seattle, then, the benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at least 50 percent. There must be at least 15 percent nonwhite students under Jefferson County’s plan; in Seattle, more than three times that figure. This comparison makes clear that the racial demographics in each district—whatever they happen to be—drive the required “diversity” numbers. The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and Demographics, to “the goal established by the school board of attain-ing a level of diversity within the schools that approximates the district’s overall demographics.” App. in No. 05–908, at 42a. The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective school districts—or rather the white/nonwhite or black/“other” balance of the districts, since that is the only diversity addressed by the plans. Indeed, in its brief Seattle simply assumes that the educational benefits track the racial breakdown of the district. See Brief for Respondents in No. 05–908, at 36 (“For Seattle, ‘racial balance’ is clearly not an end in itself but rather a measure of the extent to which the educational goals the plan was designed to foster are likely to be achieved”). When asked for “a range of percentage that would be diverse,” however, Seattle’s expert said it was important to have “sufficient numbers so as to avoid students feeling any kind of specter of exceptionality.” App. in No. 05–908, at 276a. The district did not attempt to defend the proposition that anything outside its range posed the “specter of exceptionality.” Nor did it demonstrate in any way how the educational and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent Asian-American, which would qualify as diverse under Seattle’s plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattle’s definition would be racially concentrated. Similarly, Jefferson County’s expert referred to the importance of having “at least 20 percent” minority group representation for the group “to be visible enough to make a difference,” and noted that “small isolated minority groups in a school are not likely to have a strong effect on the overall school.” App. in No. 05–915, at 159, 147. The Jefferson County plan, however, is based on a goal of replicating at each school “an African-American enrollment equivalent to the average district-wide African-American enrollment.” Id., at 81. Joshua McDonald’s requested transfer was denied because his race was listed as “other” rather than black, and allowing the transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the school he sought to leave. Id., at 21. At the time, however, Young Elementary was 46.8 percent black. Id., at 73. The transfer might have had an adverse effect on the effort to approach district-wide racial proportionality at Young, but it had nothing to do with preventing either the black or “other” group from becoming “small” or “isolated” at Young. In fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve the stated goals, even as defined by the districts. For example, at Franklin High School in Seattle, the racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming ninth-grade class in 2000–2001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent Native-American, and 40.5 percent Caucasian. Without the racial tiebreaker, the class would have been 39.6 percent Asian-American, 30.2 percent African-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. See App. in No. 05–908, at 308a. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity.[Footnote 13] In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body. 539 U. S., at 316, 335–336. Although the matter was the subject of disagreement on the Court, see id., at 346–347 (Scalia, J., concurring in part and dissenting in part); id., at 382–383 (Rehnquist, C. J., dissenting); id., at 388–392 (Kennedy, J., dissenting), the majority concluded that the law school did not count back from its applicant pool to arrive at the “meaningful number” it regarded as necessary to diversify its student body. Id., at 335–336. Here the racial balance the districts seek is a defined range set solely by reference to the demographics of the respective school districts. This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Freeman, 503 U. S., at 494. See also Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989); Bakke, 438 U. S., at 307 (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected … as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U. S., at 330. Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U. S., at 602 (O’Connor, J., dissenting); internal quotation marks omitted).[Footnote 14] Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra, at 495 (plurality opinion of O’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 320 (1986) (Stevens, J., dissenting), in turn quoting Fullilove, 448 U. S., at 547 (Stevens, J., dissenting); brackets and citation omitted). An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’Connor, J., dissenting). The validity of our concern that racial balancing has “no logical stopping point,” Croson, supra, at 498 (quoting Wygant, supra, at 275 (plurality opinion); internal quotation marks omitted); see also Grutter, supra, at 343, is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the districts’ demographics shift, so too will their definition of racial diversity. See App. in No. 05–908, at 103a (describing application of racial tiebreaker based on “current white percentage” of 41 percent and “current minority percentage” of 59 percent (emphasis added)). The Ninth Circuit below stated that it “share[d] in the hope” expressed in Grutter that in 25 years racial preferences would no longer be necessary to further the interest identified in that case. Parents Involved VII, 426 F. 3d, at 1192. But in Seattle the plans are defended as necessary to address the consequences of racially identifiable housing patterns. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. See, e.g., Shaw v. Hunt, 517 U. S. 899, 909–910 (1996) (“[A]n effort to alleviate the effects of societal discrimination is not a compelling interest”); Croson, supra, at 498–499; Wygant, 476 U. S., at 276 (plurality opinion) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy”); id., at 288 (O’Connor, J., concurring in part and concurring in judgment) (“[A] governmental agency’s interest in remedying ‘societal’ discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster”). The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration—they offer no definition of the interest that suggests it differs from racial balance. See, e.g., App. in No. 05–908, at 257a (“Q. What’s your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that”); id., at 228a–229a (“I don’t think we’ve ever sat down and said, ‘Define racially concentrated school exactly on point in quantitative terms.’ I don’t think we’ve ever had that conversation”); Tr. in McFarland I, at 1–90 (Dec. 8, 2003) (“Q. How does the Jefferson County School Board define diversity … ?” “A. Well, we want to have the schools that make up the percentage of students of the population”). Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U. S., at 280, n. 14 (“[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is … infirm as a matter of law” (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 24 (1971) (“The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole”), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system. The en banc Ninth Circuit declared that “when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution.” Parents Involved VII, supra, at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled “racial diversity” or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end. C The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Approximately 307 student assignments were affected by the racial tiebreaker in 2000–2001; the district was able to track the enrollment status of 293 of these students. App. in No. 05–908, at 162a. Of these, 209 were assigned to a school that was one of their choices, 87 of whom were assigned to the same school to which they would have been assigned without the racial tiebreaker. Eighty-four students were assigned to schools that they did not list as a choice, but 29 of those students would have been assigned to their respective school without the racial tiebreaker, and 3 were able to attend one of the oversubscribed schools due to waitlist and capacity adjustments. Id., at 162a–163a. In over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned. As the panel majority in Parents Involved VI concluded: “[T]he tiebreaker’s annual effect is thus merely to shuffle a few handfuls of different minority students between a few schools—about a dozen additional Latinos into Ballard, a dozen black students into Nathan Hale, perhaps two dozen Asians into Roosevelt, and so on. The District has not met its burden of proving these marginal changes … outweigh the cost of subjecting hundreds of students to disparate treatment based solely upon the color of their skin.” 377 F. 3d, at 984–985 (footnote omitted). Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students. Elementary school students are assigned to their first- or second-choice school 95 percent of the time, and transfers, which account for roughly 5 percent of assignments, are only denied 35 percent of the time—and presumably an even smaller percentage are denied on the basis of the racial guidelines, given that other factors may lead to a denial. McFarland I, 330 F. Supp. 2d, at 844–845, nn. 16, 18. Jefferson County estimates that the racial guidelines account for only 3 percent of assignments. Brief in Opposition in No. 05–915, p. 7, n. 4; Tr. of Oral Arg. in No. 05–915, at 46. As Jefferson County explains, “the racial guidelines have minimal impact in this process, because they ‘mostly influence student assignment in subtle and indirect ways.’ ” Brief for Respondents in No. 05–915, pp. 8–9. While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school—from 4 to 14.5 percent. See 539 U. S., at 320. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15–50% range.’ ” Brief in Opposition in No. 05–915, at 7 (quoting McFarland I, supra, at 842). Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it. The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” Grutter, supra, at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. See, e.g., App. in No. 05–908, at 224a–225a, 253a–259a, 307a. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Brief for Respondents in No. 05–915, at 8–9. Compare Croson, 488 U. S., at 519 (Kennedy, J., concurring in part and concurring in judgment) (racial classifications permitted only “as a last resort”). IV Justice Breyer’s dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision. To begin with, Justice Breyer seeks to justify the plans at issue under our precedents recognizing the compelling interest in remedying past intentional discrimination. See post, at 18–24. Not even the school districts go this far, and for good reason. The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations. See, e.g., Milliken, 433 U. S., at 280, n. 14; Freeman, 503 U. S., at 495–496 (“Where resegregation is a product not of state action but of private choices, it does not have constitutional implications”). The dissent elides this distinction between de jure and de facto segregation, casually intimates that Seattle’s school attendance patterns reflect illegal segregation, post, at 5, 18, 23,[Footnote 15] and fails to credit the judicial determination—under the most rigorous standard—that Jefferson County had eliminated the vestiges of prior segregation. The dissent thus alters in fundamental ways not only the facts presented here but the established law. Justice Breyer’s reliance on McDaniel v. Barresi, 402 U. S. 39 (1971), post, at 23–24, 29–30, highlights how far removed the discussion in the dissent is from the question actually presented in these cases. McDaniel concerned a Georgia school system that had been segregated by law. There was no doubt that the county had operated a “dual school system,” McDaniel, supra, at 41, and no one questions that the obligation to disestablish a school system segregated by law can include race-conscious remedies—whether or not a court had issued an order to that effect. See supra, at 12. The present cases are before us, however, because the Seattle school district was never segregated by law, and the Jefferson County district has been found to be unitary, having eliminated the vestiges of its prior dual status. The justification for race-conscious remedies in McDaniel is therefore not applicable here. The dissent’s persistent refusal to accept this distinction—its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel, “devised to overcome a history of segregated public schools,” post, at 47—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases. Justice Breyer’s dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S., at 16—far more heavily than the school districts themselves. Compare post, at 3, 22–28, with Brief for Respondents in No. 05–908, at 19–20; Brief for Respondents in No. 05–915, at 31. The dissent acknowledges that the two-sentence discussion in Swann was pure dicta, post, at 22, but nonetheless asserts that it demonstrates a “basic principle of constitutional law” that provides “authoritative legal guidance.” Post, at 22, 30. Initially, as the Court explained just last Term, “we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.” Central Va. Community College v. Katz, 546 U. S. 356, 363 (2006). That is particularly true given that, when Swann was decided, this Court had not yet confirmed that strict scrutiny applies to racial classifications like those before us. See n. 16, infra. There is nothing “technical” or “theoretical,” post, at 30, about our approach to such dicta. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 399–400 (1821) (Marshall, C. J.) (explaining why dicta is not binding). Justice Breyer would not only put such extraordinary weight on admitted dicta, but relies on the statement for something it does not remotely say. Swann addresses only a possible state objective; it says nothing of the permissible means—race conscious or otherwise—that a school district might employ to achieve that objective. The reason for this omission is clear enough, since the case did not involve any voluntary means adopted by a school district. The dissent’s characterization of Swann as recognizing that “the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals” is—at best—a dubious inference. Post, at 22. Even if the dicta from Swann were entitled to the weight the dissent would give it, and no dicta is, it not only did not address the question presented in Swann, it also does not address the question presented in these cases—whether the school districts’ use of racial classifications to achieve their stated goals is permissible. Further, for all the lower court cases Justice Breyer cites as evidence of the “prevailing legal assumption” embodied by Swann, very few are pertinent. Most are not. For example, the dissent features Tometz v. Board of Ed., Waukegan City School Dist. No. 61, 39 Ill. 2d 593, 596–598, 237 N. E. 2d 498, 500–502 (1968), an Illinois decision, as evidence that “state and federal courts had considered the matter settled and uncontroversial.” Post, at 25. But Tometz addressed a challenge to a statute requiring race-consciousness in drawing school attendance boundaries—an issue well beyond the scope of the question presented in these cases. Importantly, it considered that issue only under rational-basis review, 39 Ill. 2d, at 600, 237 N. E. 2d, at 502 (“The test of any legislative classification essentially is one of reasonableness”), which even the dissent grudgingly recognizes is an improper standard for evaluating express racial classifications. Other cases cited are similarly inapplicable. See, e.g., Citizens for Better Ed. v. Goose Creek Consol. Independent School Dist., 719 S. W. 2d 350, 352–353 (Tex. App. 1986) (upholding rezoning plan under rational-basis review).[Footnote 16] Justice Breyer’s dissent next looks for authority to a footnote in Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 472, n. 15 (1982), post, at 56–57, but there this Court expressly noted that it was not passing on the propriety of race-conscious student assignments in the absence of a finding of de jure segregation. Similarly, the citation of Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527 (1982), post, at 24, in which a state referendum prohibiting a race-based assignment plan was challenged, is inapposite—in Crawford the Court again expressly reserved the question presented by these cases. 458 U. S., at 535, n. 11. Such reservations and preliminary analyses of course did not decide the merits of this question—as evidenced by the disagreement among the lower courts on this issue. Compare Eisenberg, 197 F. 3d, at 133, with Comfort, 418 F. 3d, at 13. Justice Breyer’s dissent also asserts that these cases are controlled by Grutter, claiming that the existence of a compelling interest in these cases “follows a fortiori” from Grutter, post, at 41, 64–66, and accusing us of tacitly overruling that case, see post, at 64–66. The dissent overreads Grutter, however, in suggesting that it renders pure racial balancing a constitutionally compelling interest; Grutter itself recognized that using race simply to achieve racial balance would be “patently unconstitutional,” 539 U. S., at 330. The Court was exceedingly careful in describing the interest furthered in Grutter as “not an interest in simple ethnic diversity” but rather a “far broader array of qualifications and characteristics” in which race was but a single element. 539 U. S., at 324–325 (internal quotation marks omitted). We take the Grutter Court at its word. We simply do not understand how Justice Breyer can maintain that classifying every schoolchild as black or white, and using that classification as a determinative factor in assigning children to achieve pure racial balance, can be regarded as “less burdensome, and hence more narrowly tailored” than the consideration of race in Grutter, post, at 47, when the Court in Grutter stated that “[t]he importance of … individualized consideration” in the program was “paramount,” and consideration of race was one factor in a “highly individualized, holistic review.” 539 U. S., at 337. Certainly if the constitutionality of the stark use of race in these cases were as established as the dissent would have it, there would have been no need for the extensive analysis undertaken in Grutter. In light of the foregoing, Justice Breyer’s appeal to stare decisis rings particularly hollow. See post, at 65–66. At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, Justice Breyer’s dissent candidly dismisses the significance of this Court’s repeated holdings that all racial classifications must be reviewed under strict scrutiny, see post, at 31–33, 35–36, arguing that a different standard of review should be applied because the districts use race for beneficent rather than malicious purposes, see post, at 31–36. This Court has recently reiterated, however, that “ ‘all racial classifications [imposed by government] … must be analyzed by a reviewing court under strict scrutiny.’ ” Johnson, 543 U. S., at 505 (quoting Adarand, 515 U. S., at 227; emphasis added by Johnson Court). See also Grutter, supra, at 326 (“[G]overnmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry” (internal quotation marks and emphasis omitted)). Justice Breyer nonetheless relies on the good intentions and motives of the school districts, stating that he has found “no case that … repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races.” Post, at 29 (emphasis in original). We have found many. Our cases clearly reject the argument that motives affect the strict scrutiny analysis. See Johnson, supra, at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (rejecting idea that “ ‘benign’ ” racial classifications may be held to “different standard”); Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g., Gratz, 539 U. S., at 282 (Breyer, J., concurring in judgment); id., at 301 (Ginsburg, J., dissenting); Adarand, supra, at 243 (Stevens, J., dissenting); Wygant, 476 U. S., at 316–317 (Stevens, J., dissenting), and has been repeatedly rejected. See also Bakke, 438 U. S., at 289–291 (opinion of Powell, J.) (rejecting argument that strict scrutiny should be applied only to classifications that disadvantage minorities, stating “[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination”). The reasons for rejecting a motives test for racial classifications are clear enough. “The Court’s emphasis on ‘benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility… . ‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro Broadcasting, 497 U. S., at 609–610 (O’Connor, J., dissenting). See also Adarand, supra, at 226 (“ ‘[I]t may not always be clear that a so-called preference is in fact benign’ ” (quoting Bakke, supra, at 298 (opinion of Powell, J.))). Accepting Justice Breyer’s approach would “do no more than move us from ‘separate but equal’ to ‘unequal but benign.’ ” Metro Broadcasting, supra, at 638 (Kennedy, J., dissenting). Justice Breyer speaks of bringing “the races” together (putting aside the purely black-and-white nature of the plans), as the justification for excluding individuals on the basis of their race. See post, at 28–29. Again, this approach to racial classifications is fundamentally at odds with our precedent, which makes clear that the Equal Protection Clause “protect[s] persons, not groups,” Adarand, 515 U. S., at 227 (emphasis in original). See ibid. (“[A]ll governmental action based on race—a group classification long recognized as ‘in most circumstances irrelevant and therefore prohibited,’ Hirabayashi [v. United States, 320 U. S. 81, 100 (1943)]—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed” (first emphasis in original); Metro Broadcasting, supra, at 636 (“[O]ur Constitution protects each citizen as an individual, not as a member of a group” (Kennedy, J., dissenting)); Bakke, supra, at 289 (opinion of Powell, J.) (Fourteenth Amendment creates rights “guaranteed to the individual. The rights established are personal rights”). This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education, 349 U. S. 294, 300 (1955) (Brown II) (“At stake is the personal interest of the plaintiffs in admission to public schools … on a nondiscriminatory basis” (emphasis added)). For the dissent, in contrast, “ ‘individualized scrutiny’ is simply beside the point.” Post, at 55. Justice Breyer’s position comes down to a familiar claim: The end justifies the means. He admits that “there is a cost in applying ‘a state-mandated racial label,’ ” post, at 67, but he is confident that the cost is worth paying. Our established strict scrutiny test for racial classifications, however, insists on “detailed examination, both as to ends and as to means.” Adarand, supra, at 236 (emphasis added). Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny. Despite his argument that these cases should be evaluated under a “standard of review that is not ‘strict’ in the traditional sense of that word,” post, at 36, Justice Breyer still purports to apply strict scrutiny to these cases. See post, at 37. It is evident, however, that Justice Breyer’s brand of narrow tailoring is quite unlike anything found in our precedents. Without any detailed discussion of the operation of the plans, the students who are affected, or the districts’ failure to consider race-neutral alternatives, the dissent concludes that the districts have shown that these racial classifications are necessary to achieve the districts’ stated goals. This conclusion is divorced from any evaluation of the actual impact of the plans at issue in these cases—other than to note that the plans “often have no effect.” Post, at 46.[Footnote 17] Instead, the dissent suggests that some combination of the development of these plans over time, the difficulty of the endeavor, and the good faith of the districts suffices to demonstrate that these stark and controlling racial classifications are constitutional. The Constitution and our precedents require more. In keeping with his view that strict scrutiny should not apply, Justice Breyer repeatedly urges deference to local school boards on these issues. See, e.g., post, at 21, 48–49, 66. Such deference “is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified.” Johnson, 543 U. S., at 506, n. 1. See Croson, 488 U. S., at 501 (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 637 (1943) (“The Fourteenth Amendment … protects the citizen against the State itself and all of its creatures—Boards of Education not excepted”). Justice Breyer’s dissent ends on an unjustified note of alarm. It predicts that today’s decision “threaten[s]” the validity of “[h]undreds of state and federal statutes and regulations.” Post, at 61; see also post, at 27–28. But the examples the dissent mentions—for example, a provision of the No Child Left Behind Act that requires States to set measurable objectives to track the achievement of students from major racial and ethnic groups, 20 U. S. C. §6311(b)(2)(C)(v)—have nothing to do with the pertinent issues in these cases. Justice Breyer also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. Post, at 58–62. These other means—e.g., where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools—implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity—not even in dicta. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissent’s cataclysmic concerns. Under that approach, the school districts have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosen—classifying individual students on the basis of their race and discriminating among them on that basis. * * * If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. “[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand, 515 U. S., at 214 (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U. S. 630, 657 (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Metro Broadcasting, 497 U. S., at 603 (O’Connor, J., dissenting). As the Court explained in Rice v. Cayetano, 528 U. S. 495, 517 (2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” All this is true enough in the contexts in which these statements were made—government contracting, voting districts, allocation of broadcast licenses, and electing state officers—but when it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. Id., at 493–494. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. See id., at 494 (“ ‘The impact [of segregation] is greater when it has the sanction of the law’ ”). The next Term, we accordingly stated that “full compliance” with Brown I required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown II, 349 U. S., at 300–301 (emphasis added). The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O. T. 1953, p. 15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis? Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U. S., at 300–301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. The judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are remanded for further proceedings. It is so ordered. Footnote 1 The plan was in effect from 1999–2002, for three school years. This litigation was commenced in July 2000, and the record in the District Court was closed before assignments for the 2001–2002 school year were made. See Brief for Respondents in No. 05–908, p. 9, n. 9. We rely, as did the lower courts, largely on data from the 2000–2001 school year in evaluating the plan. See 426 F. 3d 1162, 1169–1171 (CA9 2005) (en banc) (Parents Involved VII). Footnote 2 The racial breakdown of this nonwhite group is approximately 23.8 percent Asian-American, 23.1 percent African-American, 10.3 percent Latino, and 2.8 percent Native-American. See 377 F. 3d 949, 1005–1006 (CA9 2004) (Parents Involved VI) (Graber, J., dissenting). Footnote 3 For the 2001–2002 school year, the deviation permitted from the desired racial composition was increased from 10 to 15 percent. App. in No. 05–908, p. 38a. The bulk of the data in the record was collected using the 10 percent band, see n. 1, supra. Footnote 4 “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Amdt. 14, §1. Footnote 5 “No person in the United States shall, on the ground of race … be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 78 Stat. 252, 42 U. S. C. §2000d. Footnote 6 “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Wash. Rev. Code §49.60.400(1) (2006). Footnote 7 Middle and high school students are designated a single resides school and assigned to that school unless it is at the extremes of the racial guidelines. Students may also apply to a magnet school or program, or, at the high school level, take advantage of an open enrollment plan that allows ninth-grade students to apply for admission to any nonmagnet high school. App. in No. 05–915, pp. 39–41, 82–83. Footnote 8 It is not clear why the racial guidelines were even applied to Joshua’s transfer application—the guidelines supposedly do not apply at the kindergarten level. Id., at 43. Neither party disputes, however, that Joshua’s transfer application was denied under the racial guidelines, and Meredith’s objection is not that the guidelines were misapplied but rather that race was used at all. Footnote 9 Meredith joined a pending lawsuit filed by several other plaintiffs. See id., at 7–11. The other plaintiffs all challenged assignments to certain specialized schools, and the District Court found these assignments, which are no longer at issue in this case, unconstitutional. McFarland I, 330 F. Supp. 2d 834, 837, 864 (WD Ky. 2004). Footnote 10 The districts point to dicta in a prior opinion in which the Court suggested that, while not constitutionally mandated, it would be constitutionally permissible for a school district to seek racially balanced schools as a matter of “educational policy.” See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971). The districts also quote with approval an in-chambers opinion in which then-Justice Rehnquist made a suggestion to the same effect. See Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978). The citations do not carry the significance the districts would ascribe to them. Swann, evaluating a school district engaged in court-ordered desegregation, had no occasion to consider whether a district’s voluntary adoption of race-based assignments in the absence of a finding of prior de jure segregation was constitutionally permissible, an issue that was again expressly reserved in Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 472, n. 15 (1982). Bustop, addressing in the context of an emergency injunction application a busing plan imposed by the Superior Court of Los Angeles County, is similarly unavailing. Then-Justice Rehnquist, in denying emergency relief, stressed that “equitable consideration[s]” counseled against preliminary relief. 439 U. S., at 1383. The propriety of preliminary relief and resolution of the merits are of course “significantly different” issues. University of Texas v. Camenisch, 451 U. S. 390, 393 (1981). Footnote 11 The way Seattle classifies its students bears this out. Upon enrolling their child with the district, parents are required to identify their child as a member of a particular racial group. If a parent identifies more than one race on the form, “[t]he application will not be accepted and, if necessary, the enrollment service person taking the application will indicate one box.” App. in No. 05–908, at 303a. Footnote 12 Jefferson County also argues that it would be incongruous to hold that what was constitutionally required of it one day—race-based assignments pursuant to the desegregation decree—can be constitutionally prohibited the next. But what was constitutionally required of the district prior to 2000 was the elimination of the vestiges of prior segregation—not racial proportionality in its own right. See Freeman v. Pitts, 503 U. S. 467, 494–496 (1992). Once those vestiges were eliminated, Jefferson County was on the same footing as any other school district, and its use of race must be justified on other grounds. Footnote 13 Data for the Seattle schools in the several years since this litigation was commenced further demonstrate the minimal role that the racial tiebreaker in fact played. At Ballard, in 2005–2006—when no class at the school was subject to the racial tiebreaker—the student body was 14.2 percent Asian-American, 9 percent African-American, 11.7 percent Latino, 62.3 percent Caucasian, and 2.8 percent Native-American. Reply Brief for Petitioner in No. 05–908, p. 7. In 2000–2001, when the racial tiebreaker was last used, Ballard’s total enrollment was 17.5 percent Asian-American, 10.8 percent African-American, 10.7 percent Latino, 56.4 percent Caucasian, and 4.6 percent Native-American. App. in No. 05–908, at 283a. Franklin in 2005–2006 was 48.9 percent Asian-American, 33.5 percent African-American, 6.6 percent Latino, 10.2 percent Caucasian, and 0.8 percent Native-American. Reply Brief for Petitioner in No. 05–908, at 7. With the racial tiebreaker in 2000–2001, total enrollment was 36.8 percent Asian-American, 32.2 percent African-American, 5.2 percent Latino, 25.1 percent Caucasian, and 0.7 percent Native-American. App. in No. 05–908, at 284a. Nathan Hale’s 2005–2006 enrollment was 17.3 percent Asian-American, 10.7 percent African-American, 8 percent Latino, 61.5 percent Caucasian, and 2.5 percent Native-American. Reply Brief for Petitioner in No. 05–908, at 7. In 2000–2001, with the racial tiebreaker, it was 17.9 percent Asian-American, 13.3 percent African-American, 7 percent Latino, 58.4 percent Caucasian, and 3.4 percent Native-American. App. in No. 05–908, at 286a. Footnote 14 In contrast, Seattle’s website formerly described “emphasizing individualism as opposed to a more collective ideology” as a form of “cultural racism,” and currently states that the district has no intention “to hold onto unsuccessful concepts such as [a] … colorblind mentality.” Harrell, School Web Site Removed: Examples of Racism Sparked Controversy, Seattle Post-Intelligencer, June 2, 2006, pp. B1, B5. Compare Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting) (“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law”). Footnote 15 Justice Breyer makes much of the fact that in 1978 Seattle “settled” an NAACP complaint alleging illegal segregation with the federal Office for Civil Rights (OCR). See post, at 5, 8–9, 18, 23. The memorandum of agreement between Seattle and OCR, of course, contains no admission by Seattle that such segregation ever existed or was ongoing at the time of the agreement, and simply reflects a “desire to avoid the incovenience [sic] and expense of a formal OCR investigation,” which OCR was obligated under law to initiate upon the filing of such a complaint. Memorandum of Agreement between Seattle School District No. 1 of King County, Washington, and the Office for Civil Rights, United States Department of Health, Education, and Welfare 2 (June 9, 1978); see also 45 CFR §80.7(c) (2006). Footnote 16 In fact, all the cases Justice Breyer’s dissent cites as evidence of the “prevailing legal assumption,” see post, at 25–27, were decided before this Court definitively determined that “all racial classifications … must be analyzed by a reviewing court under strict scrutiny.” Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 227 (1995). Many proceeded under the now-rejected view that classifications seeking to benefit a disadvantaged racial group should be held to a lesser standard of review. See, e.g., Springfield School Comm. v. Barksdale, 348 F. 2d 261, 266 (CA1 1965). Even if this purported distinction, which Justice Stevens would adopt, post, at 2, n. 3 (dissenting opinion), had not been already rejected by this Court, the distinction has no relevance to these cases, in which students of all races are excluded from the schools they wish to attend based solely on the racial classifications. See, e.g., App. in No. 05–908, at 202a (noting that 89 nonwhite students were denied assignment to a particular school by operation of Seattle’s racial tiebreaker). Justice Stevens’s reliance on School Comm. of Boston v. Board of Ed., 352 Mass. 693, 227 N. E. 2d 729 (1967), appeal dism’d, 389 U. S. 572 (1968) (per curiam), post, at 3–5, is inapposite for the same reason that many of the cases cited by Justice Breyer are inapposite; the case involved a Massachusetts law that required school districts to avoid racial imbalance in schools but did not specify how to achieve this goal—and certainly did not require express racial classifications as the means to do so. The law was upheld under rational-basis review, with the state court explicitly rejecting the suggestion—which is now plainly the law—that “racial group classifications bear a far heavier burden of justification.” 352 Mass., at 700, 227 N. E. 2d, at 734 (internal quotation marks and citation omitted). The passage Justice Stevens quotes proves our point; all the quoted language says is that the school committee “shall prepare a plan to eliminate the imbalance.” Id., at 695, 227 N. E. 2d, at 731; see post, at 4, n. 5. Nothing in the opinion approves use of racial classifications as the means to address the imbalance. The suggestion that our decision today is somehow inconsistent with our disposition of that appeal is belied by the fact that neither the lower courts, the respondent school districts, nor any of their 51 amici saw fit even to cite the case. We raise this fact not to argue that the dismissal should be afforded any different stare decisis effect, but rather simply to suggest that perhaps—for the reasons noted above—the dismissal does not mean what Justice Stevens believes it does. Footnote 17 Justice Breyer also tries to downplay the impact of the racial assignments by stating that in Seattle “students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria).” Post, at 46. This presumably refers to the district’s decision to cease, for 2001–2002 school year assignments, applying the racial tiebreaker to students seeking to transfer to a different school after ninth grade. See App. in No. 05–908, at 137a–139a. There are obvious disincentives for students to transfer to a different school after a full quarter of their high school experience has passed, and the record sheds no light on how transfers to the oversubscribed high schools are handled.
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551.US.193
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Under New York law, real property owned by a foreign government is exempt from taxation when used exclusively for diplomatic offices or quarters for ambassadors or ministers plenipotentiary to the United Nations. For years, respondent (City) has levied property taxes against petitioner foreign governments for that portion of their diplomatic office buildings used to house lower level employees and their families. Petitioners have refused to pay the taxes. By operation of state law, the unpaid taxes converted into tax liens held by the City against the properties. The City filed a state-court suit seeking declaratory judgments to establish the liens’ validity, but petitioners removed the cases to federal court, where they argued that they were immune under the Foreign Sovereign Immunities Act of 1976 (FSIA), which is “the sole basis for obtaining jurisdiction over a foreign state in federal court,” Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 439. The District Court disagreed, relying on an FSIA exception withdrawing a foreign state’s immunity from jurisdiction where “rights in immovable property situated in the United States are in issue.” 28 U. S. C. §1605(a)(4). The Second Circuit affirmed, holding that the “immovable property” exception applied, and thus the District Court had jurisdiction over the City’s suits. Held: The FSIA does not immunize a foreign government from a lawsuit to declare the validity of tax liens on property held by the sovereign for the purpose of housing its employees. Pp. 3–8. (a) Under the FSIA, a foreign state is presumptively immune from suit unless a specific exception applies. In determining the immovable property exception’s scope, the Court begins, as always, with the statute’s text. Contrary to petitioners’ position, §1605(a)(4) does not expressly limit itself to cases in which the specific right at issue is title, ownership, or possession, or specifically exclude cases in which a lien’s validity is at issue. Rather, it focuses more broadly on “rights in” property. At the time of the FSIA’s adoption, “lien” was defined as a “charge or security or incumbrance upon property,” Black’s Law Dictionary 1072, and “incumbrance” was defined as “[a]ny right to, or interest in, land which may subsist in another to the diminution of its value,” id., at 908. New York law defines “tax lien” in accordance with these general definitions. A lien’s practical effects bear out the definitions of liens as interests in property. Because a lien on real property runs with the land and is enforceable against subsequent purchasers, a tax lien inhibits a quintessential property ownership right—the right to convey. It is thus plain that a suit to establish a tax lien’s validity implicates “rights in immovable property.” Pp. 3–5. (b) This Court’s reading is supported by two of the FSIA’s related purposes. First, Congress intended the FSIA to adopt the restrictive theory of sovereign immunity, which recognizes immunity “with regard to sovereign or public acts (jure imperii) of a state, but not … private acts (jure gestionis).” Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682, 711. Property ownership is not an inherently sovereign function. The FSIA was also meant to codify the real property exception recognized by international practice at the time of its enactment. That practice supports the City’s view that petitioners are not immune, as does the contemporaneous restatement of foreign relations law. The Vienna Convention on Diplomatic Relations, on which both parties rely, does not unambiguously support either party, and, in any event, does nothing to deter this Court from its interpretation. Pp. 5–8. 446 F. 3d 365, affirmed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Breyer, J., joined.
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The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U. S. C. §1602 et seq., governs federal courts’ jurisdiction in lawsuits against foreign sovereigns. Today, we must decide whether the FSIA provides immunity to a foreign sovereign from a lawsuit to declare the validity of tax liens on property held by the sovereign for the purpose of housing its employees. We hold that the FSIA does not immunize a foreign sovereign from such a suit. I The Permanent Mission of India to the United Nations is located in a 26-floor building in New York City that is owned by the Government of India. Several floors are used for diplomatic offices, but approximately 20 floors contain residential units for diplomatic employees of the mission and their families. The employees—all of whom are below the rank of Head of Mission or Ambassador—are Indian citizens who receive housing from the mission rent free. Similarly, the Ministry for Foreign Affairs of the People’s Republic of Mongolia is housed in a six-story building in New York City that is owned by the Mongolian Government. Like the Permanent Mission of India, certain floors of the Ministry Building include residences for lower level employees of the Ministry and their families. Under New York law, real property owned by a foreign government is exempt from taxation if it is “used exclusively” for diplomatic offices or for the quarters of a diplomat “with the rank of ambassador or minister plenipotentiary” to the United Nations. N. Y. Real Prop. Tax Law Ann. §418 (West 2000). But “[i]f a portion only of any lot or building … is used exclusively for the purposes herein described, then such portion only shall be exempt and the remainder shall be subject to taxation … .” Ibid. For several years, the City of New York (City) has levied property taxes against petitioners for the portions of their buildings used to house lower level employees. Petitioners, however, refused to pay the taxes. By operation of New York law, the unpaid taxes eventually converted into tax liens held by the City against the two properties. As of February 1, 2003, the Indian Mission owed about $16.4 million in unpaid property taxes and interest, and the Mongolian Ministry owed about $2.1 million. On April 2, 2003, the City filed complaints in state court seeking declaratory judgments to establish the validity of the tax liens.[Footnote 1] Petitioners removed their cases to federal court, pursuant to 28 U. S. C. §1441(d), which provides for removal by a foreign state or its instrumentality. Once there, petitioners argued that they were immune from the suits under the FSIA’s general rule of immunity for foreign governments. §1604. The District Court disagreed, relying on the FSIA’s “immovable property” exception, which provides that a foreign state shall not be immune from jurisdiction in any case in which “rights in immovable property situated in the United States are in issue.” §1605(a)(4). Reviewing the District Court’s decision under the collateral order doctrine, a unanimous panel of the Court of Appeals for the Second Circuit affirmed. 446 F. 3d 365 (2006). The Court of Appeals held that the text and purpose of the FSIA’s immovable property exception confirmed that petitioners’ personal property tax obligations involved “rights in immovable property.” It therefore held that the District Court had jurisdiction to consider the City’s suits. We granted certiorari, 549 U. S. ___ (2007), and now affirm. II “[T]he FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 439 (1989). Under the FSIA, a foreign state is presumptively immune from suit unless a specific exception applies. §1604; Saudi Arabia v. Nelson, 507 U. S. 349, 355 (1993). At issue here is the scope of the exception where “rights in immovable property situated in the United States are in issue.” §1605(a)(4). Petitioners contend that the language “rights in immovable property” limits the reach of the exception to actions contesting ownership or possession. The City argues that the exception encompasses additional rights in immovable property, including tax liens. Each party claims international practice at the time of the FSIA’s adoption supports its view. We agree with the City. A We begin, as always, with the text of the statute. Limtiaco v. Camacho, 549 U. S. ___, ___ (2007) (slip op., at 5). The FSIA provides: “A foreign state shall not be immune from the jurisdiction of courts of the United States … in any case … in which … rights in immovable property situated in the United States are in issue.” 28 U. S. C. §1605(a)(4). Contrary to petitioners’ position, §1605(a)(4) does not expressly limit itself to cases in which the specific right at issue is title, ownership, or possession. Neither does it specifically exclude cases in which the validity of a lien is at issue. Rather, the exception focuses more broadly on “rights in” property. Accordingly, we must determine whether an action seeking a declaration of the validity of a tax lien places “rights in immovable property … in issue.” At the time of the FSIA’s adoption in 1976, a “lien” was defined as “[a] charge or security or incumbrance upon property.” Black’s Law Dictionary 1072 (4th ed. 1951). “Incumbrance,” in turn, was defined as “[a]ny right to, or interest in, land which may subsist in another to the diminution of its value . . . .” Id., at 908; see also id., at 941 (8th ed. 2004) (defining “lien” as a “legal right or interest that a creditor has in another’s property”). New York law defines “tax lien” in accordance with these general definitions. See N. Y. Real Prop. Tax Law Ann. §102(21) (West Supp. 2007) (“ ‘Tax lien’ means an unpaid tax … which is an encumbrance of real property …”). This Court, interpreting the Bankruptcy Code, has also recognized that a lienholder has a property interest, albeit a “nonpossessory” interest. United States v. Security Industrial Bank, 459 U. S. 70, 76 (1982). The practical effects of a lien bear out these definitions of liens as interests in property. A lien on real property runs with the land and is enforceable against subsequent purchasers. See 5 Restatement of Property §540 (1944). As such, “a lien has an immediate adverse effect upon the amount which [could be] receive[d] on a sale, … constitut[ing] a direct interference with the property … .” Republic of Argentina v. New York, 25 N. Y. 2d 252, 262, 250 N. E. 2d 698, 702 (1969). A tax lien thus inhibits one of the quintessential rights of property ownership—the right to convey. It is therefore plain that a suit to establish the validity of a lien implicates “rights in immovable property.” B Our reading of the text is supported by two well-recognized and related purposes of the FSIA: adoption of the restrictive view of sovereign immunity and codification of international law at the time of the FSIA’s enactment. Until the middle of the last century, the United States followed “the classical or virtually absolute theory of sovereign immunity,” under which “a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign.” Letter from Jack B. Tate, Acting Legal Adviser, U. S. Dept. of State, to Acting U. S. Attorney General Phillip B. Perlman (May 19, 1952) (Tate Letter), reprinted in 26 Dept. of State Bull. 984 (1952), and in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682, 711, 712 (1976) (App. 2 to opinion of the Court). The Tate Letter announced the United States’ decision to join the majority of other countries by adopting the “restrictive theory” of sovereign immunity, under which “the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis).” Id., at 711. In enacting the FSIA, Congress intended to codify the restrictive theory’s limitation of immunity to sover- eign acts. Republic of Argentina v. Weltover, Inc., 504 U. S. 607, 612 (1992); Asociacion de Reclamantes v. United Mexican States, 735 F. 2d 1517, 1520 (CADC 1984) (Scalia, J.). As a threshold matter, property ownership is not an inherently sovereign function. See Schooner Exchange v. McFaddon, 7 Cranch 116, 145 (1812) (“A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction, he may be considered as so far laying down the prince, and assuming the character of a private individual”). In addition, the FSIA was also meant “to codify … the pre-existing real property exception to sovereign immunity recognized by international practice.” Reclamantes, supra, at 1521 (Scalia, J.). Therefore, it is useful to note that international practice at the time of the FSIA’s enactment also supports the City’s view that these sovereigns are not immune. The most recent restatement of foreign relations law at the time of the FSIA’s enactment states that a foreign sovereign’s immunity does not extend to “an action to obtain possession of or establish a property interest in immovable property located in the territory of the state exercising jurisdiction.” Restatement (Second) of Foreign Relations Law of the United States §68(b), p. 205 (1965). As stated above, because an action seeking the declaration of the validity of a tax lien on property is a suit to establish an interest in such property, such an action would be allowed under this rule. Petitioners respond to this conclusion by citing the second sentence of Comment d to §68, which states that the rule “does not preclude immunity with respect to a claim arising out of a foreign state’s ownership or possession of immovable property but not contesting such ownership or the right to possession.” Id., at 207. According to petitioners, that sentence limits the exception to cases contesting ownership or possession. When read in context, however, the comment supports the City. Petitioners ignore the first sentence of the comment, which reemphasizes that immunity does not extend to cases involving the possession of or “interest in” the property. Ibid. And the illustrations following the comment make clear that it refers only to claims incidental to property ownership, such as actions involving an “injury suffered in a fall” on the property, for which immunity would apply. Id., at 208. By contrast, for an eminent-domain proceeding, the foreign sovereign could not claim immunity. Ibid. Like the eminent-domain proceeding, the City’s lawsuits here directly implicate rights in property. In addition, both parties rely on various international agreements, primarily the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, [1972] 23 U. S. T. 3227, T. I. A. S. No. 7502, to identify pre-FSIA international practice. Petitioners point to the Vienna Convention’s analogous withholding of immunity for “a real action relating to private immovable property situated in the territory of the receiving State, unless [the diplomatic agent] holds it on behalf of the sending State for the purposes of the mission.” Id., at 3240, Art. 31(1)(a). Petitioners contend that this language indicates they are entitled to immunity for two reasons. First, petitioners argue that “real action[s]” do not include actions for performance of obligations “ ‘deriving from ownership or possession of immovable property.’ ” Brief for Petitioners 28 (quoting E. Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations 238 (2d ed. 1998); emphasis deleted). Second, petitioners assert that the property here is held “ ‘on behalf of the sending State for purposes of the Mission.’ ” Brief for Petitioners 28. But as the City shows, it is far from apparent that the term “real action”—a term derived from the civil law—is as limited as petitioners suggest. See Chateau Lafayette Apartments, Inc. v. Meadow Brook Nat. Bank, 416 F. 2d 301, 304, n. 7 (CA5 1969). Moreover, the exception for property held “on behalf of the sending State” concerns only the case—not at issue here—where local law requires an agent to hold in his own name property used for the purposes of a mission. 1957 Y. B. Int’l L. Comm’n 94–95 (402d Meeting, May 22, 1957); see also Deputy Registrar Case, 94 I. L. R. 308, 313 (D. Ct. The Hague 1980). Other tribunals construing Article 31 have also held that it does not extend immunity to staff housing. See id., at 312; cf. Intpro Properties (U. K.) Ltd. v. Sauvel, [1983] 1 Q. B. 1019, 1032–1033. In sum, the Vienna Convention does not unambiguously support either party on the jurisdictional question.[Footnote 2] In any event, nothing in the Vienna Convention deters us from our interpretation of the FSIA. Under the language of the FSIA’s exception for immovable property, petitioners are not immune from the City’s suits. III Because the statutory text and the acknowledged purposes of the FSIA make it clear that a suit to establish the validity of a tax lien places “rights in immovable property … in issue,” we affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The City concedes that even if a court of competent jurisdiction declares the liens valid, petitioners are immune from foreclosure proceedings. See Brief for Respondent 40 (noting that there is no FSIA immunity exception for enforcement actions). The City claims, however, that the declarations of validity are necessary for three reasons. First, once a court has declared property tax liens valid, foreign sovereigns traditionally concede and pay. Second, if the foreign sovereign fails to pay in the face of a valid court judgment, that country’s foreign aid may be reduced by the United States by 110% of the outstanding debt. See Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006, §543(a), 119 Stat. 2214 (hereinafter Foreign Operations); Consolidated Appropriations Act of 2005, §543(a), 118 Stat. 3011 (hereinafter Consolidated Appropriations). Third, the liens would be enforceable against subsequent purchasers. 5 Restatement of Property §540 (1944). Footnote 2 The City offers several other arguments against immunity based on the Vienna Convention, but those arguments ultimately go to the merits of the case, i.e., whether petitioners are actually responsible for paying the taxes. Because the only question before us is one of jurisdiction, and because the text and historical context of the FSIA demonstrate that petitioners are not immune from the City’s suits, we leave these merits-related arguments to the lower courts.
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549.US.346
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In this state negligence and deceit lawsuit, a jury found that Jesse Williams’ death was caused by smoking and that petitioner Philip Morris, which manufactured the cigarettes he favored, knowingly and falsely led him to believe that smoking was safe. In respect to deceit, it awarded $821,000 in compensatory damages and $79.5 million in punitive damages to respondent, the personal representative of Williams’ estate. The trial court reduced the latter award, but it was restored by the Oregon Court of Appeals. The State Supreme Court rejected Philip Morris’ arguments that the trial court should have instructed the jury that it could not punish Philip Morris for injury to persons not before the court, and that the roughly 100-to-1 ratio the $79.5 million award bore to the compensatory damages amount indicated a “grossly excessive” punitive award. Held: 1. A punitive damages award based in part on a jury’s desire to punish a defendant for harming nonparties amounts to a taking of property from the defendant without due process. Pp. 4–10. (a) While “[p]unitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition,” BMW of North America, Inc. v. Gore, 517 U. S. 559, 568, unless a State insists upon proper standards to cabin the jury’s discretionary authority, its punitive damages system may deprive a defendant of “fair notice … of the severity of the penalty that a State may impose,” id., at 574; may threaten “arbitrary punishments,” State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 416; and, where the amounts are sufficiently large, may impose one State’s (or one jury’s) “policy choice” upon “neighboring States” with different public policies, BMW, supra, at 571–572. Thus, the Constitution imposes limits on both the procedures for awarding punitive damages and amounts forbidden as “grossly excessive.” See Honda Motor Co. v. Oberg, 512 U. S. 415, 432. The Constitution’s procedural limitations are considered here. Pp. 4–5. (b) The Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury inflicted on strangers to the litigation. For one thing, a defendant threatened with punishment for such injury has no opportunity to defend against the charge. See Lindsey v. Normet, 405 U. S. 56, 66. For another, permitting such punishment would add a near standardless dimension to the punitive damages equation and magnify the fundamental due process concerns of this Court’s pertinent cases—arbitrariness, uncertainty, and lack of notice. Finally, the Court finds no authority to support using punitive damages awards to punish a defendant for harming others. BMW, supra, at 568, n.11, distinguished. Respondent argues that showing harm to others is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. While evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk to the general public, and so was particularly reprehensible, a jury may not go further and use a punitive damages verdict to punish a defendant directly for harms to those nonparties. Given the risks of unfairness, it is constitutionally important for a court to provide assurance that a jury is asking the right question; and given the risks of arbitrariness, inadequate notice, and imposing one State’s policies on other States, it is particularly important that States avoid procedure that unnecessarily deprives juries of proper legal guidance. Pp. 5–8. (c) The Oregon Supreme Court’s opinion focused on more than reprehensibility. In rejecting Philip Morris’ claim that the Constitution prohibits using punitive damages to punish a defendant for harm to nonparties, it made three statements. The first—that this Court held in State Farm only that a jury could not base an award on dissimilar acts of a defendant—was correct, but this Court now explicitly holds that a jury may not punish for harm to others. This Court disagrees with the second statement—that if a jury cannot punish for the conduct, there is no reason to consider it—since the Due Process Clause prohibits a State’s inflicting punishment for harm to nonparties, but permits a jury to consider such harm in determining reprehensibility. The third statement—that it is unclear how a jury could consider harm to nonparties and then withhold that consideration from the punishment calculus—raises the practical problem of how to know whether a jury punished the defendant for causing injury to others rather than just took such injury into account under the rubric of reprehensibility. The answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. Although States have some flexibility in determining what kind of procedures to implement to protect against that risk, federal constitutional law obligates them to provide some form of protection where the risk of misunderstanding is a significant one. Pp. 8–10. 2. Because the Oregon Supreme Court’s application of the correct standard may lead to a new trial, or a change in the level of the punitive damages award, this Court will not consider the question whether the award is constitutionally “grossly excessive.” P. 10. 340 Ore. 35, 127 P. 3d 1165, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Alito, JJ., joined. Stevens, J., and Thomas, J., filed dissenting opinions. Ginsburg, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.
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The question we address today concerns a large state-court punitive damages award. We are asked whether the Constitution’s Due Process Clause permits a jury to base that award in part upon its desire to punish the defendant for harming persons who are not before the court (e.g., victims whom the parties do not represent). We hold that such an award would amount to a taking of “property” from the defendant without due process. I This lawsuit arises out of the death of Jesse Williams, a heavy cigarette smoker. Respondent, Williams’ widow, represents his estate in this state lawsuit for negligence and deceit against Philip Morris, the manufacturer of Marlboro, the brand that Williams favored. A jury found that Williams’ death was caused by smoking; that Williams smoked in significant part because he thought it was safe to do so; and that Philip Morris knowingly and falsely led him to believe that this was so. The jury ultimately found that Philip Morris was negligent (as was Williams) and that Philip Morris had engaged in deceit. In respect to deceit, the claim at issue here, it awarded compensatory damages of about $821,000 (about $21,000 economic and $800,000 noneconomic) along with $79.5 million in punitive damages. The trial judge subsequently found the $79.5 million punitive damages award “excessive,” see, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), and reduced it to $32 million. Both sides appealed. The Oregon Court of Appeals rejected Philip Morris’ arguments and restored the $79.5 million jury award. Subsequently, Philip Morris sought review in the Oregon Supreme Court (which denied review) and then here. We remanded the case in light of State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003). 540 U. S. 801 (2003). The Oregon Court of Appeals adhered to its original views. And Philip Morris sought, and this time obtained, review in the Oregon Supreme Court. Philip Morris then made two arguments relevant here. First, it said that the trial court should have accepted, but did not accept, a proposed “punitive damages” instruction that specified the jury could not seek to punish Philip Morris for injury to other persons not before the court. In particular, Philip Morris pointed out that the plaintiff ’s attorney had told the jury to “think about how many other Jesse Williams in the last 40 years in the State of Oregon there have been. … In Oregon, how many people do we see outside, driving home … smoking cigarettes? … [C]igarettes … are going to kill ten [of every hundred]. [And] the market share of Marlboros [i.e., Philip Morris] is one-third [i.e., one of every three killed].” App. 197a, 199a. In light of this argument, Philip Morris asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between any punitive award and “the harm caused to Jesse Williams” by Philip Morris’ misconduct, “[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims … .” Id., at 280a. The judge rejected this proposal and instead told the jury that “[p]unitive damages are awarded against a defendant to punish misconduct and to deter misconduct,” and “are not intended to compensate the plaintiff or anyone else for damages caused by the defendant’s conduct.” Id., at 283a. In Philip Morris’ view, the result was a significant likelihood that a portion of the $79.5 million award represented punishment for its having harmed others, a punishment that the Due Process Clause would here forbid. Second, Philip Morris pointed to the roughly 100-to-1 ratio the $79.5 million punitive damages award bears to $821,000 in compensatory damages. Philip Morris noted that this Court in BMW emphasized the constitutional need for punitive damages awards to reflect (1) the “reprehensibility” of the defendant’s conduct, (2) a “reasonable relationship” to the harm the plaintiff (or related victim) suffered, and (3) the presence (or absence) of “sanctions,” e.g., criminal penalties, that state law provided for comparable conduct, 517 U. S., at 575–585. And in State Farm, this Court said that the longstanding historical practice of setting punitive damages at two, three, or four times the size of compensatory damages, while “not binding,” is “instructive,” and that “[s]ingle-digit multipliers are more likely to comport with due process.” 538 U. S., at 425. Philip Morris claimed that, in light of this case law, the punitive award was “grossly excessive.” See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 458 (1993) (plurality opinion); BMW, supra, at 574–575; State Farm, supra, at 416–417. The Oregon Supreme Court rejected these and other Philip Morris arguments. In particular, it rejected Philip Morris’ claim that the Constitution prohibits a state jury “from using punitive damages to punish a defendant for harm to nonparties.” 340 Ore. 35, 51–52, 127 P. 3d 1165, 1175 (2006). And in light of Philip Morris’ reprehensible conduct, it found that the $79.5 million award was not “grossly excessive.” Id., at 63–64, 127 P. 3d, at 1181–1182. Philip Morris then sought certiorari. It asked us to consider, among other things, (1) its claim that Oregon had unconstitutionally permitted it to be punished for harming nonparty victims; and (2) whether Oregon had in effect disregarded “the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.” Pet. for Cert. (I). We granted certiorari limited to these two questions. For reasons we shall set forth, we consider only the first of these questions. We vacate the Oregon Supreme Court’s judgment, and we remand the case for further proceedings. II This Court has long made clear that “[p]unitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.” BMW, supra, at 568. See also Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974); Newport v. Fact Concerts, Inc., 453 U. S. 247, 266–267 (1981); Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 22 (1991). At the same time, we have emphasized the need to avoid an arbitrary determination of an award’s amount. Unless a State insists upon proper standards that will cabin the jury’s discretionary authority, its punitive damages system may deprive a defendant of “fair notice … of the severity of the penalty that a State may impose,” BMW, supra, at 574; it may threaten “arbitrary punishments,” i.e., punishments that reflect not an “application of law” but “a decisionmaker’s caprice,” State Farm, supra, at 416, 418 (internal quotation marks omitted); and, where the amounts are sufficiently large, it may impose one State’s (or one jury’s) “policy choice,” say as to the conditions under which (or even whether) certain products can be sold, upon “neighboring States” with different public policies, BMW, supra, at 571–572. For these and similar reasons, this Court has found that the Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as “grossly excessive.” See Honda Motor Co. v. Oberg, 512 U. S. 415, 432 (1994) (requiring judicial review of the size of punitive awards); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (review must be de novo); BMW, supra, at 574–585 (excessiveness decision depends upon the reprehensibility of the defendant’s conduct, whether the award bears a reasonable relationship to the actual and potential harm caused by the defendant to the plaintiff, and the difference between the award and sanctions “authorized or imposed in comparable cases”); State Farm, supra, at 425 (excessiveness more likely where ratio exceeds single digits). Because we shall not decide whether the award here at issue is “grossly excessive,” we need now only consider the Constitution’s procedural limitations. III In our view, the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation. For one thing, the Due Process Clause prohibits a State from punishing an individual without first providing that individual with “an opportunity to present every available defense.” Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted). Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to damages because he or she knew that smoking was dangerous or did not rely upon the defendant’s statements to the contrary. For another, to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fundamental due process concerns to which our punitive damages cases refer—risks of arbitrariness, uncertainty and lack of notice—will be magnified. State Farm, 538 U. S., at 416, 418; BMW, 517 U. S., at 574. Finally, we can find no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others. We have said that it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant’s conduct could have caused. But we have made clear that the potential harm at issue was harm potentially caused the plaintiff. See State Farm, supra, at 424 (“[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award” (emphasis added)). See also TXO, 509 U. S., at 460–462 (plurality opinion) (using same kind of comparison as basis for finding a punitive award not unconstitutionally excessive). We did use the term “error-free” (in BMW) to describe a lower court punitive damages calculation that likely included harm to others in the equation. 517 U. S., at 568, n. 11. But context makes clear that the term “error-free” in the BMW footnote referred to errors relevant to the case at hand. Although elsewhere in BMW we noted that there was no suggestion that the plaintiff “or any other BMW purchaser was threatened with any additional potential harm” by the defendant’s conduct, we did not purport to decide the question of harm to others. Id., at 582. Rather, the opinion appears to have left the question open. Respondent argues that she is free to show harm to other victims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible—although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties. Given the risks of unfairness that we have mentioned, it is constitutionally important for a court to provide assurance that the jury will ask the right question, not the wrong one. And given the risks of arbitrariness, the concern for adequate notice, and the risk that punitive damages awards can, in practice, impose one State’s (or one jury’s) policies (e.g., banning cigarettes) upon other States—all of which accompany awards that, today, may be many times the size of such awards in the 18th and 19th centuries, see id., at 594–595 (Breyer, J., concurring)—it is particularly important that States avoid procedure that unnecessarily deprives juries of proper legal guidance. We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers. IV Respondent suggests as well that the Oregon Supreme Court, in essence, agreed with us, that it did not authorize punitive damages awards based upon punishment for harm caused to nonparties. We concede that one might read some portions of the Oregon Supreme Court’s opinion as focusing only upon reprehensibility. See, e.g., 340 Ore., at 51, 127 P. 3d, at 1175 (“[T]he jury could consider whether Williams and his misfortune were merely exemplars of the harm that Philip Morris was prepared to inflict on the smoking public at large”). But the Oregon court’s opinion elsewhere makes clear that that court held more than these few phrases might suggest. The instruction that Philip Morris said the trial court should have given distinguishes between using harm to others as part of the “reasonable relationship” equation (which it would allow) and using it directly as a basis for punishment. The instruction asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between Philip Morris’ punishable misconduct and harm caused to Jesse Williams, “[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims … .” App. 280a (emphasis added). And as the Oregon Supreme Court explicitly recognized, Philip Morris argued that the Constitution “prohibits the state, acting through a civil jury, from using punitive damages to punish a defendant for harm to nonparties.” 340 Ore., at 51–52, 127 P. 3d, at 1175. The court rejected that claim. In doing so, it pointed out (1) that this Court in State Farm had held only that a jury could not base its award upon “dissimilar” acts of a defendant. 340 Ore., at 52–53, 127 P. 3d, at 1175–1176. It added (2) that “[i]f a jury cannot punish for the conduct, then it is difficult to see why it may consider it at all.” Id., at 52, n. 3, 127 P. 3d, at 1175, n. 3. And it stated (3) that “[i]t is unclear to us how a jury could ‘consider’ harm to others, yet withhold that consideration from the punishment calculus.” Ibid. The Oregon court’s first statement is correct. We did not previously hold explicitly that a jury may not punish for the harm caused others. But we do so hold now. We do not agree with the Oregon court’s second statement. We have explained why we believe the Due Process Clause prohibits a State’s inflicting punishment for harm caused strangers to the litigation. At the same time we recognize that conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few. And a jury consequently may take this fact into account in determining reprehensibility. Cf., e.g., Witte v. United States, 515 U. S. 389, 400 (1995) (recidivism statutes taking into account a criminal defendant’s other misconduct do not impose an “ ‘additional penalty for the earlier crimes,’ but instead … ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one’ ” (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948))). The Oregon court’s third statement raises a practical problem. How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In particular, we believe that where the risk of that misunderstanding is a significant one—because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury—a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases. V As the preceding discussion makes clear, we believe that the Oregon Supreme Court applied the wrong constitutional standard when considering Philip Morris’ appeal. We remand this case so that the Oregon Supreme Court can apply the standard we have set forth. Because the application of this standard may lead to the need for a new trial, or a change in the level of the punitive damages award, we shall not consider whether the award is constitutionally “grossly excessive.” We vacate the Oregon Supreme Court’s judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered.
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551.US.224
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Plaintiffs-respondents filed state-court suits alleging that various companies in California’s energy market had conspired to fix prices in violation of state law. Some of the defendants filed cross-claims seeking indemnity from, inter alios, two United States Government agencies (BPA and WAPA); a Canadian corporation (BC Hydro) wholly owned by British Columbia and thus a “foreign state” under the Foreign Sovereign Immunities Act of 1976 (FSIA); and petitioner Powerex, a wholly owned subsidiary of BC Hydro. The cross-defendants removed the entire case to federal court, with BC Hydro and petitioner relying on the FSIA. Plaintiffs-respondents moved to remand, arguing that petitioner was not a foreign state and that the cross-claims against BPA, WAPA, and BC Hydro were barred by sovereign immunity. The District Court agreed and remanded. As relevant here, petitioner appealed, arguing that it was a foreign sovereign under the FSIA, but plaintiffs-respondents rejoined that the appeal was jurisdictionally barred by 28 U. S. C. §1447(d), which provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” The Ninth Circuit held that §1447(d) did not preclude it from reviewing substantive issues of law that preceded the remand order, but affirmed the holding as to petitioner’s foreign-state status. Held: Section 1447(d) bars appellate consideration of petitioner’s claim that it is a foreign state for FSIA purposes. Pp. 3–14. (a) Appellate courts’ authority to review district-court orders remanding removed cases to state court is substantially limited by statute. Section 1447(d) is read in pari materia with §1447(c), so that only remands based on the grounds specified in the latter are shielded by the review bar mandated by the former. Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 345–346. For purposes of this case, it is assumed that the grounds specified in §1447(c) are lack of subject-matter jurisdiction and defects in removal procedure. Cf. Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 711–712. Given the proceedings below, review of the remand order is barred only if it was based on lack of subject-matter jurisdiction. Pp. 3–5. (b) Nothing in §1447(c)’s text supports the claim that a case cannot be remanded for lack of subject-matter jurisdiction within the meaning of that provision if the case was properly removed in the first instance. Indeed, statutory history conclusively refutes the argument that §1447(c) is implicitly limited in such a manner. When a district court remands a properly removed case because it nonetheless lacks subject-matter jurisdiction, the remand is covered by §1447(c) and shielded from review by §1447(d). Pp. 5–7. (c) The District Court relied upon a ground that is colorably characterized as subject-matter jurisdiction and so §1447(d) bars appellate review. As an initial matter, it is clear from the record that the court was purporting to remand for lack of subject-matter jurisdiction. Even assuming that §1447(d) permits appellate courts to look behind a district court’s characterization of the basis for the remand, such review is hereby limited to ascertaining whether the characterization was colorable. In this case, the only plausible explanation of the District Court’s remand was that it believed that it lacked the power to adjudicate the claims against petitioner once it had determined that petitioner was not a foreign state and that the other cross-defendants had sovereign immunity. It is unnecessary to determine whether that belief was correct; it was at least debatable. Petitioner contends instead that the District Court was actually remanding based on Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 357, which authorizes remand when a district court declines to exercise supplemental jurisdiction. This is implausible. The District Court never mentioned the possibility of supplemental jurisdiction, and petitioner does not appear to have argued that the claims against it could be retained based on supplemental jurisdiction. Pp. 7–10. (d) The Ninth Circuit held that §1447(d) does not preclude reviewing a district court’s substantive determinations that precede a remand order, a holding that appears to be premised on Waco v. United States Fidelity & Guaranty Co., 293 U. S. 140. Waco, however, does not permit an appeal when, as here, there is no order separate from the unreviewable remand order. Pp. 10–11. (e) Petitioner’s contention that Congress did not intend §1447(d) to govern suits removed under the FSIA is flatly refuted by this Court’s longstanding precedent that “[a]bsent a clear statutory command to the contrary, [the Court] assume[s] that Congress is ‘aware of the universality of th[e] practice’ of denying appellate review of remand orders when Congress creates a new ground for removal.” Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 128. Pp. 12–13. 391 F. 3d 1011, vacated in part and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined. Kennedy, J., filed a concurring opinion, in which Alito, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.
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We granted certiorari to decide whether, under the Foreign Sovereign Immunities Act of 1976 (FSIA), petitioner is an “organ of a foreign state or political subdivision thereof.” 28 U. S. C. §1603(b)(2). When we granted certiorari, however, we asked the parties also to address whether the Ninth Circuit had appellate jurisdiction in light of 28 U. S. C. §1447(d). I The procedural history of this case is long and complicated; we recount only what is necessary to resolve the writ before us. The State of California, along with some private and corporate citizens (hereinafter collectively referred to as plaintiffs-respondents), filed suits in California state courts against various companies in the California energy market, alleging that they had conspired to fix prices in violation of California law. Some of those defendants, in turn, filed cross-claims seeking indemnity from, inter alios, the Bonneville Power Administration (BPA), the Western Area Power Administration (WAPA), the British Columbia Hydro and Power Authority (BC Hydro), and petitioner Powerex (we shall sometimes refer to these entities collectively as the cross-defendants). BPA and WAPA are agencies of the United States Government. BC Hydro is a crown corporation of the Canadian Province of British Columbia that is wholly owned by the Province and that all parties agree constitutes a “foreign state” for purposes of the FSIA. See §1603. Petitioner, also a Canadian corporation, is a wholly owned subsidiary of BC Hydro. The cross-defendants removed the entire case to federal court. BC Hydro and petitioner both relied on §1441(d), which permits a “foreign state,” as defined by §1603(a) of the FSIA, to remove civil actions brought against it in state court. BPA and WAPA invoked §1442(a), authorizing removal by federal agencies. Plaintiffs-respondents moved to remand, arguing that petitioner was not a foreign state, and that the cross-claims against BPA, WAPA, and BC Hydro were barred by sovereign immunity. Petitioner opposed remand on the ground that it was a foreign state under the FSIA; the other cross-defendants opposed remand on the ground that their sovereign immunity entitled them to be dismissed from the action outright. The District Court initially concluded (we assume correctly) that §1442(a) entitled BPA and WAPA to remove the entire case and that BC Hydro was similarly entitled under §1441(d). App. to Pet. for Cert. 20a. It thus believed that whether the case should be remanded “hinge[d on its] jurisdictional authority to hear the removed claims, not whether the actions were properly removed in the first instance.” Ibid. The District Court held that petitioner did not qualify as a foreign sovereign under the FSIA. Id., at 33a–38a. It also decided that BC Hydro enjoyed sovereign immunity under the FSIA. Id., at 21a–33a. And it concluded that BPA and WAPA were immune from suit in state court, which the court believed deprived it of jurisdiction over the claims against those agencies. Id., at 38a–44a. Having reached these conclusions, the District Court remanded the entire case. Id., at 44a. Petitioner appealed to the Court of Appeals for the Ninth Circuit, arguing that it was a foreign sovereign under the FSIA. BPA and WAPA (but not BC Hydro) also appealed, asserting that the District Court, before remanding the case, should have dismissed them from the action in light of their sovereign immunity. Plaintiffs-respondents, for their part, rejoined that both appeals were jurisdictionally barred by §1447(d) and that the District Court had not erred in any event. The Ninth Circuit rejected the invocation of §1447(d), holding that that provision did not preclude it from reviewing substantive issues of law that preceded the remand order. California v. NRG Energy Inc., 391 F. 3d 1011, 1022–1023 (2004). It also found that the District Court had jurisdiction over the case because BPA, WAPA, and BC Hydro properly removed the entire action. Id., at 1023. Turning to the merits, the Ninth Circuit affirmed the holding that petitioner was not a “foreign state” for purposes of the FSIA. Id., at 1025–1026. It also upheld the District Court’s conclusion that BPA, WAPA, and BC Hydro retained sovereign immunity, id., at 1023–1025, but reversed its decision not to dismiss BPA and WAPA before remanding, id., at 1026–1027. Petitioner sought certiorari review of the Ninth Circuit’s determination that it was not an “organ of a foreign state or political subdivision thereof” under §1603(b)(2). We granted certiorari on this question, but asked the parties to address in addition whether the Ninth Circuit had jurisdiction over petitioner’s appeal notwithstanding §1447(d). 549 U. S. ____ (2007). II The authority of appellate courts to review district-court orders remanding removed cases to state court is substantially limited by statute. Title 28 U. S. C. §1447(d) provides (with an exception for certain civil rights cases) that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” Determining whether the Ninth Circuit was permitted to review the District Court’s remand is, alas, not as easy as one would expect from a mere reading of this text, for we have interpreted §1447(d) to cover less than its words alone suggest. In Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 345–346 (1976), we held that §1447(d) should be read in pari materia with §1447(c), so that only remands based on the grounds specified in the latter are shielded by the bar on review mandated by the former. At the time of Thermtron, §1447(c) stated in relevant part: “ ‘If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case.’ ” Id., at 342. Consequently, Thermtron limited §1447(d)’s application to such remands. Id., at 346. In 1988, Congress amended §1447(c) in relevant part as follows: “A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under [28 U. S. C. §]1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” §1016(c)(1), 102 Stat. 4670. When that version of §1447(c) was in effect, we thus interpreted §1447(d) to preclude review only of remands for lack of subject-matter jurisdiction and for defects in removal procedure. See Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 711–712 (1996); Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127–128 (1995). Although §1447(c) was amended yet again in 1996, 110 Stat. 3022, we will assume for purposes of this case that the amendment was immaterial to Thermtron’s gloss on §1447(d), so that the prohibition on appellate review remains limited to remands based on the grounds specified in Quackenbush. We agree with petitioner that the remand order was not based on a defect in removal procedure, so on the foregoing interpretation of Thermtron the remand is immunized from review only if it was based on a lack of subject-matter jurisdiction. A The principal submission of the Solicitor General and petitioner is that the District Court’s remand order was not based on a lack of “subject matter jurisdiction” within the meaning of §1447(c) because that term is properly interpreted to cover only “a defect in subject matter jurisdiction at the time of removal that rendered the removal itself jurisdictionally improper.” Brief for United States as Amicus Curiae 8; see also id., at 8–11; Brief for Petitioner 42–45. Under this interpretation, the District Court’s remand order was not based on a defect in subject-matter jurisdiction for purposes of §1447(c), since the cross-defendants other than petitioner were statutorily authorized to remove the whole case in light of their sovereign status. The Ninth Circuit appears to have relied, at least in part, on this rationale. See 391 F. 3d, at 1023. We reject this narrowing construction of §1447(c)’s unqualified authorization of remands for lack of “subject matter jurisdiction.” Nothing in the text of §1447(c) supports the proposition that a remand for lack of subject-matter jurisdiction is not covered so long as the case was properly removed in the first instance. Petitioner and the Solicitor General do not seriously dispute the absence of an explicit textual limitation. Instead, relying on the statutory history of §1447(c), they make a three-step argument why the provision is implicitly limited in this manner. First, they note that the pre-1988 version of §1447(c) mandated remand “[i]f at any time before final judgment it appear[ed] that the case was removed improvidently and without jurisdiction,” 28 U. S. C. §1447(c) (1982 ed.). That version, obviously, authorized remand only for cases that were removed improperly. Second, they contend that the purpose of the 1988 amendment was to impose a time limit for raising nonjurisdictional objections to removal, a contention that is certainly plausible in light of the structure of the amended provision: “A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” §1447(c) (1988 ed.). Finally, they conclude that since the purpose of the amendment was to alter the timing rules, there is no reason to think that Congress broadened the scope of §1447(c) to authorize the remand of cases that had been properly removed. The language “lacks subject matter jurisdiction,” which was newly added to §1447(c), must be construed to cover only cases in which removal was jurisdictionally improper at the outset. But the very statutory history upon which this creative argument relies conclusively refutes it. The same section of the public law that amended §1447(c) to include the phrase “subject matter jurisdiction” also created a new §1447(e). See §1016(c), 102 Stat. 4670. Section 1447(e), which remains on the books, states: “If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” This unambiguously demonstrates that a case can be properly removed and yet suffer from a failing in subject-matter jurisdiction that requires remand. A standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning. See, e.g., IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005). That maxim is doubly appropriate here, since the phrase “subject matter jurisdiction” was inserted into §1447(c) and §1447(e) at the same time. There is no reason to believe that the new language in the former provision, unlike the new language simultaneously inserted two subsections later, covers only cases in which removal itself was jurisdictionally improper. We hold that when a district court remands a properly removed case because it nonetheless lacks subject-matter jurisdiction, the remand is covered by §1447(c) and thus shielded from review by §1447(d).[Footnote 1] B That holding requires us to determine whether the ground for the District Court’s remand in the present case was lack of subject-matter jurisdiction. As an initial matter, it is quite clear that the District Court was purporting to remand on that ground. The heading of the discussion section of the remand order is entitled “Subject Matter Jurisdiction Over the Removed Actions.” App. to Pet. for Cert. 20a. And the District Court explicitly stated that the remand “issue hinges . . . on the Court’s jurisdictional authority to hear the removed claims.” Ibid. Were any doubt remaining, it is surely eliminated by the District Court’s order denying a stay of the remand, which repeatedly stated that a lack of subject-matter jurisdiction required remand pursuant to §1447(c). See App. 281–286. For some Members of this Court, the foregoing conclusion that the District Court purported to remand for lack of subject-matter jurisdiction is alone enough to bar review under §1447(d). See Osborn v. Haley, 549 U. S. ___, ___ (2007) (slip op., at 2–3) (Scalia, J., joined by Thomas, J., dissenting). Even assuming, however, that §1447(d) permits appellate courts to look behind the district court’s characterization, see Kircher v. Putnam Funds Trust, 547 U. S. ___, ___, n. 9 (2006) (slip op., at 7, n. 9) (reserving the question), we conclude that appellate review is barred in this case.[Footnote 2] There is only one plausible explanation of what legal ground the District Court actually relied upon for its remand in the present case. As contended by plaintiffs-respondents, it was the court’s lack of power to adjudicate the claims against petitioner once it concluded both that petitioner was not a foreign state capable of independently removing and that the claims against the other removing cross-defendants were barred by sovereign immunity. Brief for Plaintiffs-Respondents 17–21, 25–26. Though we have not passed on the question whether, when sovereign immunity bars the claims against the only parties capable of removing the case, subject-matter jurisdiction exists to entertain the remaining claims, cf. n. 3, infra, the point is certainly debatable. And we conclude that review of the District Court’s characterization of its remand as resting upon lack of subject-matter jurisdiction, to the extent it is permissible at all, should be limited to confirming that that characterization was colorable. Lengthy appellate disputes about whether an arguable jurisdictional ground invoked by the district court was properly such would frustrate the purpose of §1447(d) quite as much as determining whether the factfinding underlying that invocation was correct. See Kircher, supra, at ___ (slip op., at 2–3) (Scalia, J., concurring in part and concurring in judgment). Moreover, the line between misclassifying a ground as subject-matter jurisdiction and misapplying a proper ground of subject-matter jurisdiction is sometimes elusively thin. To decide the present case, we need not pass on whether §1447(d) permits appellate review of a district-court remand order that dresses in jurisdictional clothing a patently nonjurisdictional ground (such as the docket congestion invoked by the District Court in Thermtron, 423 U. S., at 344). We hold that when, as here, the District Court relied upon a ground that is colorably characterized as subject-matter jurisdiction, appellate review is barred by §1447(d). Petitioner puts forward another explanation for the remand, which we find implausible. Petitioner claims that, because the entire case was properly removed, the District Court had the discretion to invoke a form of supplemental jurisdiction to hear the claims against it, and that its remand rested upon the decision not to exercise that discretion. In short, petitioner contends that the District Court was actually relying on Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 357 (1988), which authorized district courts to remand removed state claims when they decide not to exercise supplemental jurisdiction. Brief for Petitioner 45–48; Reply Brief for Petitioner 16–20. It is far from clear, to begin with, (1) that supplemental jurisdiction was even available in the circumstances of this case;[Footnote 3] and (2) that when discretionary supplemental jurisdiction is declined the remand is not based on lack of subject-matter jurisdiction for purposes of §1447(c) and §1447(d).[Footnote 4] Assuming those points, however, there is no reason to believe that the District Court’s remand was actually based on this unexplained discretionary decision. The District Court itself never mentioned the possibility of supplemental jurisdiction, neither in its original decision, see App. to Pet. for Cert. 20–44, nor in its order denying petitioner’s motion to stay the remand pending appeal, App. 281–286. To the contrary, as described above, it relied upon lack of subject-matter jurisdiction—which, in petitioner’s view of things (but see n. 4, this page) would not include a Cohill remand. Moreover, it does not appear from the record that petitioner ever even argued to the District Court that supplemental jurisdiction was a basis for retaining the claims against it. There is, in short, no reason to believe that an unmentioned nonexercise of Cohill discretion was the basis for the remand. C Part of the reason why the Ninth Circuit concluded it had appellate jurisdiction is a legal theory quite different from those discussed and rejected above. Petitioner, along with the other appellants, convinced the court to apply Circuit precedent holding that §1447(d) does not preclude review of a district court’s merits determinations that precede the remand. See 391 F. 3d, at 1023 (citing, inter alia, Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F. 2d 273, 276–277 (CA9 1984)). Petitioner has not completely abandoned this argument before us, see Brief for Petitioner 50, and it is in any event desirable to address this aspect of the Ninth Circuit’s judgment. The line of Ninth Circuit jurisprudence upon which petitioner relied appears to be invoking our decision in Waco v. United States Fidelity & Guaranty Co., 293 U. S. 140 (1934). There the District Court, in a single decree, had entered one order dismissing a cross-complaint against one party, and another order remanding because there was no diversity of citizenship in light of the dismissal. Id., at 142. We held that appellate jurisdiction existed to review the order of dismissal, although we repeatedly cautioned that the remand order itself could not be set aside. Id., at 143–144. The Ninth Circuit’s application of Waco to petitioner’s appeal was mistaken. As we reiterated in Kircher, see 547 U. S., at ___, n. 13 (slip op., at 11, n. 13), Waco does not permit an appeal when there is no order separate from the unreviewable remand order. Here petitioner can point to no District Court order, separate from the remand, to which it objects and to which the issue of its foreign sovereign status is material. Thus, petitioner’s invocation of Waco amounts to a request for one of two impermissible outcomes: an advisory opinion as to its FSIA status that will not affect any order of the District Court, or a reversal of the remand order. Waco did not, and could not, authorize either form of judicial relief. D Finally, petitioner contends, with no textual support, that §1447(d) is simply inapplicable to a suit removed under the FSIA. It asserts that “§1447(d) must yield because Congress could not have intended to grant district judges irrevocable authority to decide questions with such sensitive foreign-relations implications.” Brief for Petitioner 49. We will not ignore a clear jurisdictional statute in reliance upon supposition of what Congress really wanted. See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992). Petitioner’s divination of congressional intent is flatly refuted by longstanding precedent: “Section 1447(d) applies ‘not only to remand orders made in suits removed under [the general removal statute], but to orders of remand made in cases removed under any other statutes, as well.’ . . . Absent a clear statutory command to the contrary, we assume that Congress is ‘aware of the universality of th[e] practice’ of denying appellate review of remand orders when Congress creates a new ground for removal.” Things Remembered, 516 U. S., at 128 (quoting United States v. Rice, 327 U. S. 742, 752 (1946); emphasis deleted and alterations in original). Congress has repeatedly demonstrated its readiness to exempt particular classes of remand orders from §1447(d) when it wishes—both within the text of §1447(d) itself (which exempts civil rights cases removed pursuant to 28 U. S. C. §1443), and in separate statutes, see, e.g., 12 U. S. C. §1441a(l)(3)(c), §1819(b)(2)(C); 25 U. S. C. §487(d). We are well aware that §1447(d)’s immunization of erroneous remands has undesirable consequences in the FSIA context. A foreign sovereign defendant whose case is wrongly remanded is denied not only the federal forum to which it is entitled (as befalls all remanded parties with meritorious appeals barred by §1447(d)), but also certain procedural rights that the FSIA specifically provides foreign sovereigns only in federal court (such as the right to a bench trial, see 28 U. S. C. §1330(a); §1441(d)). But whether that special concern outweighs §1447(d)’s general interest in avoiding prolonged litigation on threshold nonmerits questions, see Kircher, supra, at ___ (slip op., at 5), is a policy debate that belongs in the halls of Congress, not in the hearing room of this Court. As far as the Third Branch is concerned, what the text of §1447(d) indisputably does prevails over what it ought to have done.[Footnote 5] * * * Section 1447(d) reflects Congress’s longstanding “policy of not permitting interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed.” Rice, supra, at 751. Appellate courts must take that jurisdictional prescription seriously, however pressing the merits of the appeal might seem. We hold that §1447(d) bars appellate consideration of petitioner’s claim that it is a foreign state for purposes of the FSIA. We therefore vacate in part the judgment of the Ninth Circuit and remand the case with instructions to dismiss petitioner’s appeal for want of jurisdiction. It is so ordered. Footnote 1 To be clear, we do not suggest that the question whether removal is proper is always different from the question whether the district court has subject-matter jurisdiction, for the two are often identical in light of the general rule that postremoval events do not deprive federal courts of subject-matter jurisdiction. See, e.g., Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 391 (1998). We merely hold that when there is a divergence, such that a district court lacks subject-matter jurisdiction to hear a claim that was properly removed, the consequent remand is authorized by §1447(c) and appellate review is barred by §1447(d). Footnote 2 The Court’s opinion in Osborn v. Haley, 549 U. S. ___ (2007), had nothing to say about the scope of review that is permissible under §1447(d), since it held that §1447(d) was displaced in its entirety by 28 U. S. C. §2679(d)(2). See 549 U. S., at ___ (slip op., at 15–16) (reasoning that, of the two forum-determining provisions—§1447(d), the generally applicable section, and §2679(d)(2), a special prescription governing Westfall Act cases—“only one can prevail”). Footnote 3 Petitioner provides no authority from this Court supporting the proposition that a district court presiding over a multiparty removed case can invoke supplemental jurisdiction to hear claims against a party that cannot independently remove when the claims against the only parties authorized to remove are barred by sovereign immunity. Footnote 4 We have never passed on whether Cohill remands are subject-matter jurisdictional for purposes of post-1988 versions of §1447(c) and §1447(d). See Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 129–130 (1995) (Kennedy, J., concurring) (noting that the question is open); cf. Cohill, 484 U. S., at 355, n. 11 (discussing the pre-1988 version of §1447(c)). Footnote 5 The dissent’s belief that there is an implicit FSIA exception to §1447(d), see post, at 1–6 (opinion of Breyer, J.), rests almost exclusively on our recent decision in Osborn. The dissent reads Osborn to stand for the proposition that any “conflict” between a specific, later-enacted statute and §1447(d) should be resolved in favor of the former. Post, at 2–3. The reason why the dissent is forced to the parenthetical admission that “Osborn did not say as much,” post, at 2, is because the dissent drastically overreads the case. Osborn held only that §1447(d) was trumped by the Westfall Act’s explicit provision that removal was conclusive upon the Attorney General’s certification: as between “the two antishuttling commands,” the Court said, “only one can prevail.” 549 U. S., at ___ (slip op., at 16). The opinion was quite clear that the only statutory rivalry with which it was concerned was dueling “antishuttling commands”: “Only in the extraordinary case in which Congress has ordered the intercourt shuttle to travel just one way—from state to federal court—does today’s decision hold sway.” Ibid. That is why Osborn repeatedly emphasized that Westfall Act certification is “ ‘conclusiv[e] . . . for purposes of removal,’ ” id., at ___ (slip op., at 13, 14), an emphasis that the dissent essentially ignores, post, at 2–3. Osborn is no license for courts to assume the legislative role by characterizing the consequences of §1447(d)’s bar on appellate review as creating a conflict, leaving it to judges to suppress that provision when they think Congress undervalued or overlooked those consequences. The dissent renders a quintessential policy judgment in concluding that appellate “delay is necessary, indeed, crucial,” post, at 4, when the rights of a foreign sovereign are at stake. We have no idea whether this is a wise balancing of the various values at issue here. We are confident, however, that the dissent is wrong to think that it would improve the “law in this democracy,” post, at 6, for judges to accept the lawmaking power that the dissent dangles before them.
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551.US.338
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Petitioner Rita sought a sentence lower than the recommended Federal Guidelines range of 33 to 41 months based on his physical condition, likely vulnerability in prison, and military experience. The judge concluded that the appropriate sentence was 33 months, the bottom of the Guidelines range. In affirming, the Fourth Circuit observed that a sentence imposed within a properly calculated Guidelines range is presumptively reasonable. Held: 1. A court of appeals may apply a presumption of reasonableness to a district court sentence within the Guidelines. Pp. 7–16. (a) Such a presumption is not binding. It does not reflect strong judicial deference of the kind that leads appeals court to grant greater factfinding leeway to an expert agency than to a district judge. It reflects the nature of the Guidelines-writing task that Congress set for the Sentencing Commission and how the Commission carries out that task. In 18 U. S. C. §3553(a), Congress instructed the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. Statutes then tell the Commission to write Guidelines that will carry out the same basic §3553(a) objectives. The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and had the help of the law enforcement community over a long period in an effort to fulfill this statutory mandate. They also reflect the fact that judges (and others) can differ as to how best to reconcile the disparate ends of punishment. The resulting Guidelines seek to embody the §3553(a) considerations, both in principle and in practice, and it is fair to assume that they, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)’s objectives. An individual sentence reflects the sentencing judge’s determination that the Commission’s application of §3553(a) is appropriate in the mine run of cases, that the individual case does not differ significantly, and consequently that a Guidelines sentence reflects a proper application of §3553(a) in the case at hand. The “reasonableness” presumption simply recognizes these real-world circumstances. It applies only on appellate review. The sentencing court does not enjoy the presumption’s benefit when determining the merits of the arguments by prosecution or defense that a Guidelines sentence should not apply. Pp. 7–12. (b) Even if the presumption increases the likelihood that the judge, not the jury, will find “sentencing facts,” it does not violate the Sixth Amendment. This Court’s Sixth Amendment cases do not forbid a sentencing court to take account of factual matters not determined by a jury and increase the sentence accordingly to take account of the Sentencing Commission’s factual findings or recommended sentences. The relevant Sixth Amendment inquiry is whether a law forbids a judge to increase a sentence unless the judge finds facts that the jury did not find. A nonbinding appellate reasonableness presumption for Guidelines sentences does not require the sentencing judge to impose a Guidelines sentence. Still less does it forbid the judge to impose a sentence higher than the Guidelines provide for the jury-determined facts standing alone. In addition, any general conflict between §3353(a) and the Guidelines for appellate review purposes is alleviated where judge and Commission both determine that the Guidelines sentence is appropriate in the case at hand, for that sentence likely reflects §3353(a)’s factors. Pp. 12–16. 2. The District Court properly analyzed the relevant sentencing factors, and given the record, its ultimate sentence was reasonable. Section 3353(c) calls for the judge to “state” his “reasons,” but does not insist on a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. The law leaves much, in this respect, to the judge’s own professional judgment. In the present context, the sentencing judge should articulate enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. He may say less when his decision rests upon the Commission’s own reasoning that the Guidelines sentence is proper in the typical case, and the judge has found that the case before him is typical. But where a party presents nonfrivolous reasons for imposing a different sentence, the judge will normally go further and explain why he has rejected those arguments. Here, the sentencing judge’s statement of reasons was brief but legally sufficient. The record makes clear that the judge listened to each of Rita’s arguments for a downward departure and considered the supporting evidence before finding those circumstances insufficient to warrant a sentence lower than the Guidelines range. Where, as here, the matter is conceptually simple and the record makes clear that the sentencing judge considered the evidence and arguments, the law does not require a judge to write more extensively. Pp. 16–20. 3. The Fourth Circuit, after applying the presumption, was legally correct in holding that Rita’s sentence was not “unreasonable.” Like the District Court and the Fourth Circuit, this Court simply cannot say that Rita’s special circumstances—his health, fear of retaliation, and military record—are special enough, in light of §3553(a), to require a sentence lower than the one the Guidelines provide. Rita’s argument that the Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics, such as his physical condition, employment record, and military service, was not raised below and will not be considered here. Pp. 20–21. 177 Fed. Appx. 357, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Ginsburg, and Alito, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined as to all but Part II. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Souter, J., filed a dissenting opinion.
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The federal courts of appeals review federal sentences and set aside those they find “unreasonable.” See, e.g., United States v. Booker, 543 U. S. 220, 261–263 (2005). Several Circuits have held that, when doing so, they will presume that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence. See, e.g., 177 Fed. Appx. 357, 358 (CA4 2006) (per curiam) (case below); see also United States Sentencing Commission, Guidelines Manual (Nov. 2006) (USSG or Guidelines). The most important question before us is whether the law permits the courts of appeals to use this presumption. We hold that it does. I A The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury. The jury was investigating a gun company called InterOrdnance. Prosecutors believed that buyers of an InterOrdnance kit, called a “PPSH 41 machinegun ‘parts kit,’ ” could assemble a machinegun from the kit, that those kits consequently amounted to machineguns, and that InterOrdnance had not secured proper registrations for the importation of the guns. App. 7, 16–19, 21–22. Rita had bought a PPSH 41 machinegun parts kit. Rita, when contacted by the Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF), agreed to let a federal agent inspect the kit. Id., at 119–120; Supp. App. 5–8. But before meeting with the agent, Rita called InterOrdnance and then sent back the kit. He subsequently turned over to ATF a different kit that apparently did not amount to a machinegun. App. 23–24, 120; Supp. App. 2–5, 8–10, 13–14. The investigating prosecutor brought Rita before the grand jury, placed him under oath, and asked him about these matters. Rita denied that the Government agent had asked him for the PPSH kit, and also denied that he had spoken soon thereafter about the PPSH kit to someone at InterOrdnance. App. 19, 120–121; Supp. App. 11–12. The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts. App. 7–13, 94, 103. B The parties subsequently proceeded to sentencing. Initially, a probation officer, with the help of the parties, and after investigating the background both of the offenses and of the offender, prepared a presentence report. See Fed. Rules Crim. Proc. 32(c)–(d); 18 U. S. C. §3552(a). The completed report describes “offense characteristics,” “offender characteristics,” and other matters that might be relevant to the sentence, and then calculates a Guidelines sentence. The report also sets forth factors potentially relevant to a departure from the Guidelines or relevant to the imposition of an other-than-Guidelines sentence. It ultimately makes a sentencing recommendation based on the Guidelines. App. 115–136. In respect to “offense characteristics,” for example, the report points out that the five counts of conviction all stem from a single incident. Id., at 122. Hence, pursuant to the Guidelines, the report, in calculating a recommended sentence, groups the five counts of conviction together, treating them as if they amounted to the single most serious count among them (and ignoring all others). See USSG §3D1.1. The single most serious offense in Rita’s case is “perjury.” The relevant Guideline, §2J1.3(c)(1), instructs the sentencing court (and the probation officer) to calculate the Guidelines sentence for “perjury . . . in respect to a criminal offense” by applying the Guideline for an “accessory after the fact,” as to that criminal offense. §2X3.1. And that latter Guideline says that the judge, for calculation purposes, should take as a base offense level, a level that is “6 levels lower than the offense level for the underlying offense,” (emphasis added) (the offense that the perjury may have helped someone commit). Here the “underlying offense” consisted of InterOrdnance’s possible violation of the machinegun registration law. App. 124; USSG §2M5.2 (providing sentence for violation of 22 U. S. C. §2778(b)(2), importation of defense articles without authorization). The base offense level for the gun registration crime is 26. See USSG §2M5.2. Six levels less is 20. And 20, says the presentence report, is the base offense level applicable to Rita for purposes of Guidelines sentence calculation. App. 45. The presentence report next considers Rita’s “Criminal History.” Id., at 125. Rita was convicted in May 1986, and sentenced to five years’ probation for making false statements in connection with the purchase of firearms. Because this conviction took place more than 10 years before the present offense, it did not count against Rita. And because Rita had no other relevant convictions, the Guidelines considered him as having no “criminal history points.” Ibid. The report consequently places Rita in criminal history category I, the lowest category for purposes of calculating a Guidelines’ sentence. The report goes on to describe other “Offender Characteristics.” Id., at 126. The description includes Rita’s personal and family data, Rita’s physical condition (including a detailed description of ailments), Rita’s mental and emotional health, the lack of any history of substance abuse, Rita’s vocational and nonvocational education, and Rita’s employment record. It states that he served in the Armed Forces for over 25 years, on active duty and in the Reserve. During that time he received 35 commendations, awards, or medals of different kinds. The report analyzes Rita’s financial condition. Id., at 126–132. Ultimately, the report calculates the Guidelines sentencing range. Id., at 132. The Guidelines specify for base level 20, criminal history category I, a sentence of 33-to-41 months’ imprisonment. Ibid. The report adds that there “appears to be no circumstance or combination of circumstances that warrant a departure from the prescribed sentencing guidelines.” Id., at 133. C At the sentencing hearing, both Rita and the Government presented their sentencing arguments. Each side addressed the report. Rita argued for a sentence outside (and lower than) the recommended Guidelines 33-to-41 month range. The judge made clear that Rita’s argument for a lower sentence could take either of two forms. First, Rita might argue within the Guidelines’ framework, for a departure from the applicable Guidelines range on the ground that his circumstances present an “atypical case” that falls outside the “heartland” to which the United States Sentencing Commission intends each individual Guideline to apply. USSG §5K2.0(a)(2). Second, Rita might argue that, independent of the Guidelines, application of the sentencing factors set forth in 18 U. S. C. §3553(a) (2000 ed. and Supp. IV) warrants a lower sentence. See Booker, 543 U. S., at 259–260. Thus, the judge asked Rita’s counsel, “Are you going to put on evidence to show that [Rita] should be getting a downward departure, or under 3553, your client would be entitled to a different sentence than he should get under sentencing guidelines?” App. 52. And the judge later summarized: “[Y]ou’re asking for a departure from the guidelines or a sentence under 3553 that is lower than the guidelines, and here are the reasons: “One, he is a vulnerable defendant because he’s been involved in [government criminal justice] work which has caused people to become convicted criminals who are in prison and there may be retribution against him. “Two, his military experience . . . . ” Id., at 64–65. Counsel agreed, while adding that Rita’s poor physical condition constituted a third reason. And counsel said that he rested his claim for a lower sentence on “[j]ust [those] three” special circumstances, “[p]hysical condition, vulnerability in prison and the military service.” Id., at 65. Rita presented evidence and argument related to these three factors. The Government, while not asking for a sentence higher than the report’s recommended Guidelines range, said that Rita’s perjury had interfered with the Government’s potential “obstruction of justice” claim against InterOrdnance and that Rita, as a former Government criminal justice employee, should have known better than to commit perjury. Id., at 74–77. The sentencing judge asked questions about each factor. After hearing the arguments, the judge concluded that he was “unable to find that the [report’s recommended] sentencing guideline range . . . is an inappropriate guideline range for that, and under 3553 . . . the public needs to be protected if it is true, and I must accept as true the jury verdict.” Id., at 87. The court concluded: “So the Court finds that it is appropriate to enter” a sentence at the bottom of the Guidelines range, namely a sentence of imprisonment “for a period of 33 months.” Ibid. D On appeal, Rita argued that his 33-month sentence was “unreasonable” because (1) it did not adequately take account of “the defendant’s history and characteristics,” and (2) it “is greater than necessary to comply with the purposes of sentencing set forth in 18 U. S. C. §3553(a)(2).” Brief for Appellant in No. 05–4674 (CA4), pp. i, 8. The Fourth Circuit observed that it must set aside a sentence that is not “reasonable.” The Circuit stated that “a sentence imposed within the properly calculated Guidelines range . . . is presumptively reasonable.” It added that “while we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual cases, we have no reason to doubt that most sentences will continue to fall within the applicable guideline range.” The Fourth Circuit then rejected Rita’s arguments and upheld the sentence. Ibid. (internal quotation marks omitted). E Rita petitioned for a writ of certiorari. He pointed out that the Circuits are split as to the use of a presumption of reasonableness for within-Guidelines sentences. Compare United States v. Dorcely, 454 F. 3d 366, 376 (CADC 2006) (uses presumption); United States v. Green, 436 F. 3d 449, 457 (CA4 2006) (same); United States v. Alonzo, 435 F. 3d 551, 554 (CA5 2006) (same); United States v. Williams, 436 F. 3d 706, 708 (CA6 2006) (same); United States v. Mykytiuk, 415 F. 3d 606, 608 (CA7 2005) (same); United States v. Lincoln, 413 F. 3d 716, 717 (CA8 2005) (same); and United States v. Kristl, 437 F. 3d 1050, 1053–1054 (CA10 2006) (per curiam) (same), with United States v. Jimenez-Beltre, 440 F. 3d 514, 518 (CA1 2006) (en banc) (does not use presumption), United States v. Fernandez, 443 F. 3d 19, 27 (CA2 2006) (same); United States v. Cooper, 437 F. 3d 324, 331 (CA3 2006) (same); and United States v. Talley, 431 F. 3d 784, 788 (CA11 2005) (per curiam) (same). We consequently granted Rita’s petition. We agreed to decide whether a circuit court may afford a “presumption of reasonableness” to a “within-Guidelines” sentence. We also agreed to decide whether the District Court properly analyzed the relevant sentencing factors and whether, given the record, the District Court’s ultimate choice of a 33-month sentence was “unreasonable.” II The first question is whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines. We conclude that it can. A For one thing, the presumption is not binding. It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case. C.f., e.g., Raytheon Co. v. Hernandez, 540 U. S. 44, 49–50, n. 3 (2003) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 143 (2000), and McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973)). Nor does the presumption reflect strong judicial deference of the kind that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge. Rather, the presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one. Further, the presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task. In instructing both the sentencing judge and the Commission what to do, Congress referred to the basic sentencing objectives that the statute sets forth in 18 U. S. C. §3553(a) (2000 ed. and Supp. IV). That provision tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. The provision also tells the sentencing judge to “impose a sentence sufficient, but not greater than necessary, to comply with” the basic aims of sentencing as set out above. Congressional statutes then tell the Commission to write Guidelines that will carry out these same §3553(a) objectives. Thus, 28 U. S. C. §991(b) indicates that one of the Commission’s basic objectives is to “assure the meeting of the purposes of sentencing as set forth in [§3553(a)(2)].” The provision adds that the Commission must seek to “provide certainty and fairness” in sentencing, to “avoi[d] unwarranted sentencing disparities,” to “maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices,” and to “reflect, to the extent practicable [sentencing-relevant] advancement in [the] knowledge of human behavior.” Later provisions specifically instruct the Commission to write the Guidelines with reference to this statement of purposes, the statement that itself refers to §3553(a). See 28 U. S. C. §§994(f), and 994(m). The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic §3553(a) objectives, the one, at retail, the other at wholesale. The Commission has made a serious, sometimes controversial, effort to carry out this mandate. The Commission, in describing its Guidelines-writing efforts, refers to these same statutory provisions. It says that it has tried to embody in the Guidelines the factors and considerations set forth in §3553(a). The Commission’s introductory statement recognizes that Congress “foresees guidelines that will further the basic purposes of criminal punishment, i.e., deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender.” USSG §1A.1, intro to comment., pt. A, ¶2 (The Statutory Mission). It adds that Congress “sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct,” as well as “proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity.” Ibid. The Basic Approach). The Guidelines commentary explains how, despite considerable disagreement within the criminal justice community, the Commission has gone about writing Guidelines that it intends to embody these ends. It says, for example, that the goals of uniformity and proportionality often conflict. The commentary describes the difficulties involved in developing a practical sentencing system that sensibly reconciles the two ends. It adds that a “philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment.” Some would emphasize moral culpability and “just punishment”; others would emphasize the need for “crime control.” Rather than choose among differing practical and philosophical objectives, the Commission took an “empirical approach,” beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past and then modifying and adjusting past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like. Id., ¶3, at 3. The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill this statutory mandate. They also reflect the fact that different judges (and others) can differ as to how best to reconcile the disparate ends of punishment. The Commission’s work is ongoing. The statutes and the Guidelines themselves foresee continuous evolution helped by the sentencing courts and courts of appeals in that process. The sentencing courts, applying the Guidelines in individual cases may depart (either pursuant to the Guidelines or, since Booker, by imposing a non-Guidelines sentence). The judges will set forth their reasons. The Courts of Appeals will determine the reasonableness of the resulting sentence. The Commission will collect and examine the results. In doing so, it may obtain advice from prosecutors, defenders, law enforcement groups, civil liberties associations, experts in penology, and others. And it can revise the Guidelines accordingly. See generally 28 U. S. C. §994(p) and note following §994 (Commission should review and amend Guidelines as necessary, and Congress has power to revoke or amend Guidelines); Mistretta v. United States, 488 U. S. 361, 393–394 (1989); USSG §1B1.10(c) (listing 24 amendments promulgated in response to evolving sentencing concerns); USSG §1A1.1, comment. The result is a set of Guidelines that seek to embody the §3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the abstract and potentially conflicting nature of §3553(a)’s general sentencing objectives, and the differences of philosophical view among those who work within the criminal justice community as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)’s objectives. An individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission’s judgment in general. Despite Justice Souter’s fears to the contrary, post, at 7–9 (dissenting opinion), the courts of appeals’ “reasonableness” presumption, rather than having independent legal effect, simply recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of §3553(a) in the mine run of cases, it is probable that the sentence is reasonable. Indeed, even the Circuits that have declined to adopt a formal presumption also recognize that a Guidelines sentence will usually be reasonable, because it reflects both the Commission’s and the sentencing court’s judgment as to what is an appropriate sentence for a given offender. See Fernandez, 443 F. 2d, at 27; Cooper, 437 F. 3d, at 331; Talley, 431 F. 3d, at 788. We repeat that the presumption before us is an appellate court presumption. Given our explanation in Booker that appellate “reasonableness” review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review. The sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines. 18 U. S. C. §3552(a); Fed. Rule Crim. Proc. 32. He may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the “heartland” to which the Commission intends individual Guidelines to apply, USSG §5K2.O, perhaps because the Guidelines sentence itself fails properly to reflect §3553(a) considerations, or perhaps because the case warrants a different sentence regardless. See Rule 32(f). Thus, the sentencing court subjects the defendant’s sentence to the thorough adversarial testing contemplated by federal sentencing procedure. See Rules 32(f), (h), (i)(C) and (i)(D); see also Burns v. United States, 501 U. S. 129, 136 (1991) (recognizing importance of notice and meaningful opportunity to be heard at sentencing). In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. Booker, 543 U. S., at 259–260. B Rita and his supporting amici make two further arguments against use of the presumption. First, Rita points out that many individual Guidelines apply higher sentences in the presence of special facts, for example, brandishing a weapon. In many cases, the sentencing judge, not the jury, will determine the existence of those facts. A pro-Guidelines “presumption of reasonableness” will increase the likelihood that courts of appeals will affirm such sentences, thereby increasing the likelihood that sentencing judges will impose such sentences. For that reason, Rita says, the presumption raises Sixth Amendment “concerns.” Brief for Petitioner 28. In our view, however, the presumption, even if it increases the likelihood that the judge, not the jury, will find “sentencing facts,” does not violate the Sixth Amendment. This Court’s Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence. Nor do they prohibit the sentencing judge from taking account of the Sentencing Commission’s factual findings or recommended sentences. See Cunningham v. California, 549 U. S. ___, ___–___ (2007) (slip op., at 8–9), (citing Booker, supra, at 243–244; Blakely v. Washington, 542 U. S. 296, 304–305 (2004); Ring v. Arizona, 536 U. S. 584, 602 (2002); and Apprendi v. New Jersey, 530 U. S. 466, 471 (2000)). The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (and the offender did not concede). Blakely, supra, at 303–304 (“When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority” (internal quotation marks and citation omitted)); see Cunningham, supra, at ____, (slip op., 10, 11) (discussing Blakely) (“The judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty,” “[b]ecause the judge in Blakely’s case could not have imposed a sentence outside the standard range without finding an additional fact, the top of that range … was the relevant” maximum sentence for Sixth Amendment purposes); Booker, 543 U. S., at 244 (“Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt”); id., at 232 (discussing Blakely) (“We rejected the State’s argument that the jury verdict was sufficient to authorize a sentence within the general 10-year sentence for class B felonies, noting that under Washington law, the judge was required to find additional facts in order to impose the greater 90-month sentence”) (emphasis in original)). A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone. As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range. Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption. Justice Scalia concedes that the Sixth Amendment concerns he foresees are not presented by this case. Post, at 7 (concurring in part and concurring in judgment). And his need to rely on hypotheticals to make his point is consistent with our view that the approach adopted here will not “raise a multitude of constitutional problems.” Clark v. Martinez, 543 U. S. 371, 380–381 (2005). Similarly, Justice Scalia agrees that we have never held that “the Sixth Amendment prohibits judges from ever finding any facts” relevant to sentencing. Post, at 6. In sentencing, as in other areas, district judges at time make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur. Our decision in Booker recognized as much, 543 U. S., at 260–264. Booker held unconstitutional that portion of the Guidelines that made them mandatory. Id., at 233–234, 243–244. It also recognized that when district courts impose discretionary sentences, which are reviewed under normal appellate principles by courts of appeals, such a sentencing scheme will ordinarily raise no Sixth Amendment concern. Ibid; see id., at 233 (opinion for the Court by Stevens, J.) (“Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [federal sentencing statute] the provisions that make the Guidelines binding on district judges”). That being so, our opinion in Booker made clear that today’s holding does not violate the Sixth Amendment. Rita may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences. But we do not see how that fact could change the constitutional calculus. Congress sought to diminish unwarranted sentencing disparity. It sought a Guidelines system that would bring about greater fairness in sentencing through increased uniformity. The fact that the presumption might help achieve these congressional goals does not provide cause for holding the presumption unlawful as long as the presumption remains constitutional. And, given our case law, we cannot conclude that the presumption itself violates the Sixth Amendment. The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness. Even the Government concedes that appellate courts may not presume that every variance from the advisory Guidelines is unreasonable. See Brief for United States 34–35. Several courts of appeals have also rejected a presumption of unreasonableness. See, e.g., United States v. Howard, 454 F. 3d 700, 703 (CA7 2006); United States v. Matheny, 450 F. 3d 633, 642 (CA6 2006); United States v. Myers, 439 F. 3d 415, 417 (CA8 2006); United States v. Moreland, 437 F. 3d 424, 433 (CA4 2006). However, a number of circuits adhere to the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance. See, e.g., United States v. Smith, 445 F. 3d 1, 4 (CA1 2006); United States v. Moreland, 437 F. 3d 424, 434 (CA4 2006); United States v. Armendariz, 451 F. 3d 352, 358 (CA5 2006); United States v. Davis, 458 F. 3d 491, 496 (CA6 2006); United States v. Dean, 414 F. 3d 725, 729 (CA7 2005); United States v. Dalton, 404 F. 3d 1029, 1033 (CA8 2005); United States v. Bishop, 469 F. 3d 896, 907 (CA10 2006); United States v. Crisp, 454 F. 3d 1285, 1291–1292 (CA11 2006). We will consider that approach next Term in United States v. Gall, No. 06–7949. Second, Rita and his amici claim that use of a pro- Guidelines presumption on appeal conflicts with Congress’ insistence that sentencing judges apply the factors set forth in 18 U. S. C. §3553(a) (2000 ed., Supp. IV) (and that the resulting sentence be “sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in that statute). We have explained above, however, why we believe that, where judge and Commission both determine that the Guidelines sentences is an appropriate sentence for the case at hand, that sentence likely reflects the §3553(a) factors (including its “not greater than necessary” requirement). See supra, at 8. This circumstance alleviates any serious general conflict between §3553(a) and the Guidelines, for the purposes of appellate review. And, for that reason, we find that nothing in §3553(a) renders use of the presumption unlawful. III We next turn to the question whether the District Court properly analyzed the relevant sentencing factors. In particular, Rita argues that the court took inadequate account of §3553(c) (2000 ed., Supp. IV), a provision that requires a sentencing judge, “at the time of sentencing,” to “state in open court the reasons for its imposition of the particular sentence.” In our view, given the straightforward, conceptually simple arguments before the judge, the judge’s statement of reasons here, though brief, was legally sufficient. The statute does call for the judge to “state” his “reasons.” And that requirement reflects sound judicial practice. Judicial decisions are reasoned decisions. Confidence in a judge’s use of reason underlies the public’s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust. That said, we cannot read the statute (or our precedent) as insisting upon a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word “granted,” or “denied” on the face of a motion while relying upon context and the parties’ prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge’s own professional judgment. In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. See, e.g., United States v. Taylor, 487 U. S. 326, 336–337 (1988). Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of §3353(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under §3553(a)—that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way—or argues for departure, the judge normally need say no more. Cf. §3553(c)(2) (2000 ed., Supp. IV). (Although, often at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.) Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation. Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so. To our knowledge, an ordinary explanation of judicial reasons as to why the judge has, or has not, applied the Guidelines triggers no Sixth Amendment “jury trial” requirement. Cf. Booker, 543 U. S., at 233 (“For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant”) and id., at 242 (requirement of finding, not articulation of it, creates Sixth Amendment problem). By articulating reasons, even if brief, the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve. The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court. That being so, his reasoned sentencing judgment, resting upon an effort to filter the Guidelines’ general advice through §3553(a)’s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission. The reasoned responses of these latter institutions to the sentencing judge’s explanation should help the Guidelines constructively evolve over time, as both Congress and the Commission foresaw. See generally supra, at 11. In the present case the sentencing judge’s statement of reasons was brief but legally sufficient. Rita argued for a downward departure from the 33-to-41 month Guidelines sentence on the basis of three sets of special circumstances: health, fear of retaliation in prison, and military record. See App. 40–47. He added that, in any event, these same circumstances warrant leniency beyond that contemplated by the Guidelines. The record makes clear that the sentencing judge listened to each argument. The judge considered the supporting evidence. The judge was fully aware of defendant’s various physical ailments and imposed a sentence that takes them into account. The judge understood that Rita had previously worked in the immigration service where he had been involved in detecting criminal offenses. And he considered Rita’s lengthy military service, including over 25 years of service, both on active duty and in the Reserve, and Rita’s receipt of 35 medals, awards, and nominations. The judge then simply found these circumstances insufficient to warrant a sentence lower than the Guidelines range of 33 to 45 months. Id., at 87. He said that this range was not “inappropriate.” (This, of course, is not the legal standard for imposition of sentence, but taken in context it is plain that the judge so understood.) He immediately added that he found that the 33-month sentence at the bottom of the Guidelines range was “appropriate.” Ibid. He must have believed that there was not much more to say. We acknowledge that the judge might have said more. He might have added explicitly that he had heard and considered the evidence and argument; that (as no one before him denied) he thought the Commission in the Guidelines had determined a sentence that was proper in the minerun of roughly similar perjury cases; and that he found that Rita’s personal circumstances here were simply not different enough to warrant a different sentence. But context and the record make clear that this, or similar, reasoning, underlies the judge’s conclusion. Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively. IV We turn to the final question: Was the Court of Appeals, after applying its presumption, legally correct in holding that Rita’s sentence (a sentence that applied, and did not depart from, the relevant sentencing Guideline) was not “unreasonable”? In our view, the Court of Appeals’ conclusion was lawful. As we previously said, see Part I, supra, the crimes at issue are perjury and obstruction of justice. In essence those offenses involved the making of knowingly false, material statements under oath before a grand jury, thereby impeding its criminal investigation. The Guidelines provide for a typical such offense a base offense level of 20, 6 levels below the level provided for a simple violation of the crime being investigated (here the unlawful importation of machineguns). The offender, Rita, has no countable prior offenses and consequently falls within criminal history category I. The intersection of base offense level 20 and criminal history category I sets forth a sentencing range of imprisonment of 33 to 45 months. Rita argued at sentencing that his circumstances are special. He based this argument upon his health, his fear of retaliation, and his prior military record. His sentence explicitly takes health into account by seeking assurance that the Bureau of Prisons will provide appropriate treatment. The record makes out no special fear of retaliation, asserting only that the threat is one that any former law enforcement official might suffer. Similarly, though Rita has a lengthy and distinguished military record, he did not claim at sentencing that military service should ordinarily lead to a sentence more lenient than the sentence the Guidelines impose. Like the District Court and the Court of Appeals, we simply cannot say that Rita’s special circumstances are special enough that, in light of §3553(a), they require a sentence lower than the sentence the Guidelines provide. Finally, Rita and supporting amici here claim that the Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant, such as physical condition, employment record, and military service, under the view that these factors are “not ordinarily relevant.” USSG §§5H1.4, 5H1.5, 5H1.11. Rita did not make this argument below, and we shall not consider it. * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.
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549.US.457
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While employed as an engineer at a nuclear weapons plant run by petitioner Rockwell under a Government contract, respondent Stone predicted that Rockwell’s system for creating solid “pondcrete” blocks from toxic pond sludge and cement would not work because of problems in piping the sludge. However, Rockwell successfully made such blocks and discovered “insolid” ones only after Stone was laid off in 1986. In 1989, Stone filed a qui tam suit under the False Claims Act, which prohibits submitting false or fraudulent payment claims to the United States, 31 U. S. C. §3729(a); permits remedial civil actions to be brought by the Attorney General, §3730(a), or by private individuals in the Government’s name, §3730(b)(1); but eliminates federal-court jurisdiction over actions “based upon the public disclosure of allegations or transactions … , unless the action is brought by the Attorney General or the person bringing the action is an original source of the information,” §3730(e)(4)(A). An “original source” “has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action … based on the information.” §3730(e)(4)(B). In 1996, the Government intervened, and, with Stone, filed an amended complaint, which did not allege that Stone’s predicted piping-system defect caused the insolid blocks. Nor was such defect mentioned in a statement of claims included in the final pretrial order, which instead alleged that the pondcrete failed because a new foreman used an insufficient cement-to-sludge ratio. The jury found for respondents with respect to claims covering the pondcrete allegations, but found for Rockwell with respect to all other claims. The District Court denied Rockwell’s postverdict motion to dismiss Stone’s claims, finding that Stone was an original source. The Tenth Circuit affirmed in part, but remanded for the District Court to determine whether Stone had disclosed his information to the Government before filing the action. The District Court found Stone’s disclosure inadequate, but the Tenth Circuit disagreed and held that Stone was an original source. Held: 1. Section 3730(e)(4)’s original-source requirement is jurisdictional. Thus, regardless of whether Rockwell conceded Stone’s original-source status, this Court must decide whether Stone meets this jurisdictional requirement. Pp. 8–11. 2. Because Stone does not meet §3730(e)(4)(B)’s requirement that a relator have “direct and independent knowledge of the information on which the allegations are based,” he is not an original source. Pp. 12–18. (a) The “information” to which subparagraph (B) speaks is the information on which the relator’s allegations are based rather than the information on which the publicly disclosed allegations that triggered the public-disclosure bar are based. The subparagraph standing on its own suggests that disposition. And those “allegations” are not the same as the allegations referred to in subparagraph (A), which bars actions based on the “public disclosure of allegations or transactions” with an exception for cases brought by “an original source of the information.” Had Congress wanted to link original-source status to information underlying public disclosure it would have used the identical phrase, “allegations or transactions.” Furthermore, it is difficult to understand why Congress would care whether a relator knows about the information underlying a publicly disclosed allegation when the relator has direct and independent knowledge of different information supporting the same allegation. Pp. 12–14. (b) In determining which “allegations” are relevant, that term is not limited to “allegations” in the original complaint, but includes the allegations as amended. The statute speaks of the relator’s “allegations,” simpliciter. Absent some limitation of §3730(e)(4)’s requirement to the initial complaint, this Court will not infer one. Here, where the final pretrial order superseded prior pleadings, this Court looks to the final pretrial order to determine original-source status. Pp. 14–17. (c) Judged according to these principles, Stone’s knowledge falls short. The only false claims found by the jury involved insolid pondcrete discovered after Stone left his employment. Thus, he did not know that the pondcrete had failed; he predicted it. And his prediction was a failed one, for Stone believed the piping system was defective when, in fact, the pondcrete problem would be caused by a foreman’s actions after Stone had left the plant. Stone’s original-source status with respect to a separate, spray-irrigation claim did not provide jurisdiction over all of his claims. Section 3730(e)(4) does not permit jurisdiction in gross just because a relator is an original source with respect to some claim. Pp. 17–18. 3. The Government’s intervention in this case did not provide an independent basis of jurisdiction with respect to Stone. The statute draws a sharp distinction between actions brought by a private person under §3730(b) and actions brought by the Attorney General under §3730(b). An action originally brought by a private person, which the Attorney General has joined, becomes an action brought by the Attorney General only after the private person has been ousted. Pp. 18–20. 92 Fed. Appx. 708, reversed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Breyer, J., took no part in the consideration or decision of the case.
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The False Claims Act, 31 U. S. C. §§3729–3733, eliminates federal-court jurisdiction over actions under §3730 of the Act that are based upon the public disclosure of allegations or transactions “unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” §3730(e)(4)(A). We decide whether respondent James Stone was an original source. I The mixture of concrete and pond sludge that is the subject of this case has taken nearly two decades to seep, so to speak, into this Court. Given the long history and the complexity of this litigation, it is well to describe the facts in some detail. A From 1975 through 1989, petitioner Rockwell International Corp. was under a management and operating contract with the Department of Energy (DOE) to run the Rocky Flats nuclear weapons plant in Colorado. The most significant portion of Rockwell’s compensation came in the form of a semiannual “ ‘award fee,’ ” the amount of which depended on DOE’s evaluation of Rockwell’s performance in a number of areas, including environmental, safety, and health concerns. United States ex rel. Stone v. Rockwell Int’l, Corp., 92 Fed. Appx. 708, 714 (CA10 2004). From November 1980 through March 1986, James Stone worked as an engineer at the Rocky Flats plant. In the early 1980’s, Rockwell explored the possibility of disposing of the toxic pond sludge that accumulated in solar evaporation ponds at the facility, by mixing it with cement. The idea was to pour the mixture into large rectangular boxes, where it would solidify into “pondcrete” blocks that could be stored onsite or transported to other sites for disposal. Stone reviewed a proposed manufacturing process for pondcrete in 1982. He concluded that the proposal “would not work,” App. 175, and communicated that conclusion to Rockwell management in a written “Engineering Order.” As Stone would later explain, he believed “the suggested process would result in an unstable mixture that would later deteriorate and cause unwanted release of toxic wastes to the environment.” Ibid. He believed this because he “foresaw that the piping system” that extracted sludge from the solar ponds “would not properly remove the sludge and would lead to an inadequate mixture of sludge/waste and cement such that the ‘pond crete’ blocks would rapidly disintegrate thus creating additional contamination problems.” Id., at 290. Notwithstanding Stone’s prediction, Rockwell proceeded with its pondcrete project and successfully manufactured “concrete hard” pondcrete during the period of Stone’s employment at Rocky Flats. It was only after Stone was laid off in March 1986 that what the parties have called “insolid” pondcrete blocks were discovered. According to respondents, Rockwell knew by October 1986 that a substantial number of pondcrete blocks were insolid, but DOE did not become aware of the problem until May 1988, when several pondcrete blocks began to leak, leading to the discovery of thousands of other insolid blocks. The media reported these discoveries, 3 Appellants’ App. in Nos. 99–1351, 99–1352, 99–1353 (CA10), pp. 889–38 to 889–39; and attributed the malfunction to Rockwell’s reduction of the ratio of concrete to sludge in the mixture. In June 1987, more than a year after he had left Rockwell’s employ, Stone went to the Federal Bureau of Investigation (FBI) with allegations of environmental crimes at Rocky Flats during the time of his employment. According to the court below, Stone alleged that “contrary to public knowledge, Rocky Flats accepted hazardous and nuclear waste from other DOE facilities; that Rockwell employees were ‘forbidden from discussing any controversies in front of a DOE employee’; that although Rocky Flats’ fluid bed incinerators failed testing in 1981, the pilot incinerator remained on line and was used to incinerate wastes daily since 1981, including plutonium wastes which were then sent out for burial; that Rockwell distilled and fractionated various oils and solvents although the wastes were geared for incineration; that Stone believed that the ground water was contaminated from previous waste burial and land application, and that hazardous waste lagoons tended to overflow during and after ‘a good rain,’ causing hazardous wastes to be discharged without first being treated.” App. to Pet. for Cert. 4a. Stone provided the FBI with 2,300 pages of documents, buried among which was his 1982 engineering report predicting that the pondcrete-system design would not work. Stone did not discuss his pondcrete allegations with the FBI in their conversations.[Footnote 1] Based in part on information allegedly learned from Stone, the Government obtained a search warrant for Rocky Flats, and on June 6, 1989, 75 FBI and Environmental Protection Agency agents raided the facility. The affidavit in support of the warrant included allegations (1) that pondcrete blocks were insolid “due to an inadequate waste-concrete mixture,” App. 429, (2) that Rockwell obtained award fees based on its alleged “ ‘excellent’ ” management of Rocky Flats, id., at 98, and (3) that Rockwell made false statements and concealed material facts in violation of the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2811, 42 U. S. C. §6928, and 18 U. S. C. §1001. Newspapers published these allegations. In March 1992, Rockwell pleaded guilty to 10 environmental violations, including the knowing storage of insolid pondcrete blocks in violation of RCRA. Rockwell agreed to pay $18.5 million in fines. B In July 1989, Stone filed a qui tam suit under the False Claims Act.[Footnote 2] That Act prohibits false or fraudulent claims for payment to the United States, 31 U. S. C. §3729(a), and authorizes civil actions to remedy such fraud to be brought by the Attorney General, §3730(a), or by private individuals in the Government’s name, §3730(b)(1). The Act provides, however, that “[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions … from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” §3730(e)(4)(A). An “original source” is “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” §3730(e)(4)(B). Stone’s complaint alleged that Rockwell was required to comply with certain federal and state environmental laws and regulations, including RCRA; that Rockwell committed numerous violations of these laws and regulations throughout the 1980’s[Footnote 3]; and that, in order to induce the Government to make payments or approvals under Rockwell’s contract, Rockwell knowingly presented false and fraudulent claims to the Government in violation of the False Claims Act, 31 U. S. C. §3729(a). As required under the Act, Stone filed his complaint under seal and simultaneously delivered to the Government a confidential disclosure statement describing “substantially all material evidence and information” in his possession, §3730(b)(2). The statement identified 26 environmental and safety issues, only one of which involved pondcrete. With respect to that issue, Stone explained in his statement that he had reviewed the design for the pondcrete system and had foreseen that the piping mechanism would not properly remove the sludge, which in turn would lead to an inadequate mixture of sludge and cement. In December 1992, Rockwell moved to dismiss Stone’s action for lack of subject-matter jurisdiction, arguing that the action was based on publicly disclosed allegations and that Stone was not an original source. The District Court denied the motion because, in its view, “Stone had direct and independent knowledge that Rockwell’s compensation was linked to its compliance with environmental, health and safety regulations and that it allegedly concealed its deficient performance so that it would continue to receive payments.” App. to Pet. for Cert. 61a. The Government initially declined to intervene in Stone’s action, but later reversed course, and in November 1996, the District Court granted the Government’s intervention. Several weeks later, at the suggestion of the District Court, the Government and Stone filed a joint amended complaint. As relevant here, the amended complaint alleged that Rockwell violated RCRA by storing leaky pondcrete blocks, but did not allege that any defect in the piping system (as predicted by Stone) caused insolid pondcrete.[Footnote 4] Respondents clarified their allegations even further in a statement of claims which became part of the final pretrial order and which superseded their earlier pleadings. This said that the pondcrete’s insolidity was due to “an incorrect cement/sludge ratio used in pondcrete operations, as well as due to inadequate process controls and inadequate inspection procedures.” App. 470. It continued: “During the winter of 1986, Rockwell replaced its then pondcrete foreman, Norman Fryback, with Ron Teel. Teel increased pondcrete production rates in part by, among other things, reducing the amount of cement added to the blocks. Following the May 23, 1988 spill, Rockwell acknowledged that this reduced cement-to-sludge ratio was a major contributor to the existence of insufficiently solid pondcrete blocks on the storage pads.” Id., at 476–477. The statement of claims again did not mention the piping problem asserted by Stone years earlier. Respondents’ False Claims Act claims went to trial in 1999. None of the witnesses Stone had identified during discovery as having relevant knowledge testified at trial. And none of the documents Stone provided to the Government with his confidential disclosure statement was introduced in evidence at trial. Nor did respondents allege at trial that the defect in the piping system predicted by Stone caused insolid pondcrete. To the contrary, during closing arguments both Stone’s counsel and the Government’s counsel repeatedly explained to the jury that the pondcrete failed because Rockwell’s new foreman used an insufficient cement-to-sludge ratio in an effort to increase pondcrete production. The verdict form divided the False Claims Act count into several different claims corresponding to different award-fee periods. The jury found in favor of respondents for the three periods covering the pondcrete allegations (April 1, 1987, to September 30, 1988), and found for Rockwell as to the remaining periods. The jury awarded damages of $1,390,775.80, which the District Court trebled pursuant to 31 U. S. C. §3729(a). Rockwell filed a postverdict motion to dismiss Stone’s claims under §3730(e)(4), arguing that the claims were based on publicly disclosed allegations and that Stone was not an original source. In response, Stone acknowledged that his successful claims were based on publicly disclosed allegations, but asserted original-source status. The District Court agreed with Stone. The United States Court of Appeals for the Tenth Circuit affirmed in relevant part, but remanded the case for the District Court to determine whether Stone had disclosed his information to the Government before filing his qui tam action, as §3730(e)(4)(B) required. On remand, the District Court found that Stone had produced the 1982 engineering order to the Government, but that the order was insufficient to communicate Stone’s allegations. The District Court also found that Stone had not carried his burden of proving that he orally informed the FBI about his allegations before filing suit. On appeal, the Tenth Circuit disagreed with the District Court’s conclusion and held (over the dissent of Judge Briscoe) that the 1982 engineering order sufficed to carry Stone’s burden of persuasion. 92 Fed. Appx. 708. We granted certiorari, 548 U. S. ____ (2006), to decide whether Stone was an original source. II Section 3730(e)(4)(A) provides that “[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” (Footnote omitted.) As discussed above, §3730(e)(4)(B) defines “original source” as “an individual who [1] has direct and independent knowledge of the information on which the allegations are based and [2] has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” As this case comes to the Court, it is conceded that the claims on which Stone prevailed were based upon publicly disclosed allegations within the meaning of §3730(e)(4)(A). The question is whether Stone qualified under the original-source exception to the public-disclosure bar. We begin with the possibility that little analysis is required in this case, for Stone asserts that Rockwell conceded his original-source status. Rockwell responds that it conceded no such thing and that, even had it done so, the concession would have been irrelevant because §3730(e)(4) is jurisdictional. We agree with the latter proposition. It is true enough that the word “jurisdiction” does not in every context connote subject-matter jurisdiction. Noting that “jurisdiction” is “ ‘a word of many, too many, meanings,’ ” we concluded in Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), that establishing the elements of an offense was not made a jurisdictional matter merely because the statute creating the cause of action was phrased as providing for “jurisdiction” over such suits. Id., at 90 (quoting United States v. Vanness, 85 F. 3d 661, 663, n. 2 (CADC 1996)). Here, however, the issue is not whether casting the creation of a cause of action in jurisdictional terms somehow limits the general grant of jurisdiction under which that cause of action would normally be brought, but rather whether a clear and explicit withdrawal of jurisdiction withdraws jurisdiction. It undoubtedly does so. Just last Term we stated that, “[i]f the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, the courts and litigants will be duly instructed and will not be left to wrestle with the issue.” Arbaugh v. Y & H Corp., 546 U. S. 500, 515–516 (2006) (footnote omitted). Here the jurisdictional nature of the original-source requirement is clear ex visceribus verborum. Indeed, we have already stated that §3730(e)(4) speaks to “the power of a particular court” as well as “the substantive rights of the parties.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 951 (1997). Stone’s contrary position rests entirely on dicta from a single Court of Appeals decision, see United States ex rel. Fallon v. Accudyne Corp., 97 F. 3d 937, 940–941 (CA7 1996). Accudyne thought it significant that jurisdiction over False Claims Act cases is conferred by 28 U. S. C. §§1331 and 1345 (the federal-question and United-States-as-plaintiff provisions of the Judicial Code) and 31 U. S. C. §3732(a) (the provision of the False Claims Act establishing federal-court venue and conferring federal-court jurisdiction over related state-law claims), rather than §3730, which is the “section” referenced in §3730(e)(4). To eliminate jurisdiction, the court believed, it is those jurisdiction-conferring sections that would have to be referenced. We know of nothing in logic or authority to support this. The jurisdiction-removing provision here does not say “no court shall have jurisdiction under this section,” but rather “no court shall have jurisdiction over an action under this section.” That is surely the most natural way to achieve the desired result of eliminating jurisdiction over a category of False Claims Act actions—rather than listing all the conceivable provisions of the United States Code whose conferral of jurisdiction is being eliminated. (In addition to the provisions cited by the Accudyne court, one might also have to mention the diversity-jurisdiction provision, 28 U. S. C. §1332, and the supplemental-jurisdiction provision, §1367.) Accudyne next observed that the public-disclosure bar limits only who may speak for the United States on a subject and who if anyone gets a financial reward, not the “categories of disputes that may be resolved (a real ‘jurisdictional’ limit).” 97 F. 3d, at 941. But this is a classic begging of the question, which is precisely whether there has been removed from the courts’ jurisdiction that category of disputes consisting of False Claims Act qui tam suits based on publicly disclosed allegations as to which the relator is not an original source of the information. Nothing prevents Congress from defining the “category” of excluded suits in any manner it wishes. See, e.g., 28 U. S. C. §1500 (no jurisdiction over “any claim for or in respect to which the plaintiff . . . has pending in any other court any suit … against the United States”). Lastly, Accudyne asserted that “the Supreme Court had held that a similar reference to jurisdiction in the Norris-LaGuardia Act, 29 U. S. C. §§101, 104, limits remedies rather than subject-matter jurisdiction.” 97 F. 3d, at 941 (citing Burlington Northern R. Co. v. Maintenance of Way Employes, 481 U. S. 429, 444–446 (1987)). But the language of the Norris-LaGuardia Act is in fact not similar. It provides that “[n]o court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute … .” 29 U. S. C. §104 (emphasis added). It is facially a limitation upon the relief that can be accorded, not a removal of jurisdiction over “any case involving or growing out of a labor dispute.” Here, by contrast, the text says “[n]o court shall have jurisdiction over an action under this section.” Whether the point was conceded or not, therefore, we may, and indeed must, decide whether Stone met the jurisdictional requirement of being an original source. III We turn to the first requirement of original-source status, that the relator have “direct and independent knowledge of the information on which the allegations are based.” 31 U. S. C. §3730(e)(4)(B). Because we have not previously addressed this provision, several preliminary questions require our attention. A First, does the phrase “information on which the allegations are based” refer to the information on which the relator’s allegations are based or the information on which the publicly disclosed allegations that triggered the public-disclosure bar are based? The parties agree it is the former. See Brief for Petitioners 26, n. 13; Brief for United States 24, and n. 8; Brief for Respondent Stone 15, 21. But in view of our conclusion that §3730(e)(4) is jurisdictional, we must satisfy ourselves that the parties’ position is correct. Though the question is hardly free from doubt,[Footnote 5] we agree that the “information” to which subparagraph (B) speaks is the information upon which the relators’ allegations are based. To begin with, subparagraph (B) standing on its own suggests that disposition. The relator must have “direct and independent knowledge of the information on which the allegations are based,” and he must “provid[e] the information to the Government before filing an action under this section which is based on the information.” Surely the information one would expect a relator to “provide to the Government before filing an action … based on the information” is the information underlying the relator’s claims. Subparagraph (A) complicates matters. As described earlier, it bars actions based on the “public disclosure of allegations or transactions” and provides an exception for cases brought by “an original source of the information.” If the allegations referred to in subparagraph (B)’s phrase requiring “direct and independent knowledge of the information on which the allegations are based,” are the same “allegations” referred to in subparagraph (A), then original-source status would depend on knowledge of information underlying the publicly disclosed allegations. The principal textual difficulty with that interpretation is that subparagraph (A) does not speak simply of “allegations,” but of “allegations or transactions.” Had Congress wanted to link original-source status to information underlying the public disclosure, it would surely have used the identical phrase, “allegations or transactions”; there is no conceivable reason to require direct and independent knowledge of publicly disclosed allegations but not of publicly disclosed transactions. The sense of the matter offers strong additional support for this interpretation. Section 3730(e)(4)(A) bars actions based on publicly disclosed allegations whether or not the information on which those allegations are based has been made public. It is difficult to understand why Congress would care whether a relator knows about the information underlying a publicly disclosed allegation (e.g., what a confidential source told a newspaper reporter about insolid pondcrete) when the relator has direct and independent knowledge of different information supporting the same allegation (e.g., that a defective process would inevitably lead to insolid pondcrete). Not only would that make little sense, it would raise nettlesome procedural problems, placing courts in the position of comparing the relator’s information with the often unknowable information on which the public disclosure was based. Where that latter information has not been disclosed (by reason, for example, of a reporter’s desire to protect his source), the relator would presumably be out of court. To bar a relator with direct and independent knowledge of information underlying his allegations just because no one can know what information underlies the similar allegations of some other person simply makes no sense. The contrary conclusion of some lower courts rests on the following logic: The term “information” in subparagraph (B) must be read in tandem with the term “information” in subparagraph (A), and the term “information” in subparagraph (A) refers to the information on which the publicly disclosed allegations are based. See, e.g., United States ex rel. Laird v. Lockheed Martin Eng. & Science Servs. Co., 336 F. 3d 346, 354 (CA5 2003). The major premise of this reasoning seems true enough: “information” in (A) and (B) means the same thing. The minor premise, however—that “information” in (A) refers to the information underlying the publicly disclosed allegations or transactions—is highly questionable. The complete phrase at issue is “unless … the person bringing the action is an original source of the information.” It seems to us more likely (in light of the analysis set forth above) that the information in question is the information underlying the action referred to a few words earlier, to-wit, the action “based upon the public disclosure of allegations or transactions” referred to at the beginning of the provision. On this interpretation, “information” in subparagraph (A) and “information on which the allegations are based” in subparagraph (B) are one and the same, viz., information underlying the allegations of the relator’s action. B Having determined that the phrase “information on which the allegations are based” refers to the relator’s allegations and not the publicly disclosed allegations, we confront more textual ambiguity: Which of the relator’s allegations are the relevant ones? Stone’s allegations changed during the course of the litigation, yet he asks that we look only to his original complaint. Rockwell argues that Stone must satisfy the original-source exception through all stages of the litigation. In our view, the term “allegations” is not limited to the allegations of the original complaint. It includes (at a minimum) the allegations in the original complaint as amended. The statute speaks not of the allegations in the “original complaint” (or even the allegations in the “complaint”), but of the relator’s “allegations” simpliciter. Absent some limitation of §3730(e)(4)’s requirement to the relator’s initial complaint, we will not infer one. Such a limitation would leave the relator free to plead a trivial theory of fraud for which he had some direct and independent knowledge and later amend the complaint to include theories copied from the public domain or from materials in the Government’s possession. Even the Government concedes that new allegations regarding a fundamentally different fraudulent scheme require reevaluation of the court’s jurisdiction. See Brief for United States 40; Tr. of Oral Arg. 40. The rule that subject-matter jurisdiction “depends on the state of things at the time of the action brought,” Mollan v. Torrance, 9 Wheat. 537, 539 (1824), does not suggest a different interpretation. The state of things and the originally alleged state of things are not synonymous; demonstration that the original allegations were false will defeat jurisdiction. Anderson v. Watt, 138 U. S. 694, 701 (1891); Morris v. Gilmer, 129 U. S. 315, 326 (1889). So also will the withdrawal of those allegations, unless they are replaced by others that establish jurisdiction. Thus, when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction. See Wellness Community-Nat. v. Wellness House, 70 F. 3d 46, 49 (CA7 1995); Boelens v. Redman Homes, Inc., 759 F. 2d 504, 508 (CA5 1984).[Footnote 6] Here, we have not only an amended complaint, but a final pretrial order that superseded all prior pleadings and “controll[ed] the subsequent course of the action,” Fed. Rule Civ. Proc. 16(e). See Curtis v. Loether, 415 U. S. 189, 190, n. 1 (1974) (where a claim was not included in the complaint, but was included in the pretrial order, “it is irrelevant that the pleadings were never formally amended” (citing Fed. Rules Civ. Proc. 15(b), 16)); Wilson v. Muckala, 303 F. 3d 1207, 1215 (CA10 2002) (“[C]laims, issues, defenses, or theories of damages not included in the pretrial order are waived even if they appeared in the complaint and, conversely, the inclusion of a claim in the pretrial order is deemed to amend any previous pleadings which did not include that claim”); Syrie v. Knoll Int’l, 748 F. 2d 304, 308 (CA5 1984) (“[I]ncorporation of a [new] claim into the pre-trial order … amends the previous pleadings to state [the new] claim”). In these circumstances, we look to the allegations as amended—here, the statement of claims in the final pretrial order—to determine original-source status. The Government objects that this approach risks driving a wedge between the Government and relators. It worries that future relators might decline to “acquiesc[e]” in the Government’s tactical decision to narrow the claims in a case if that would eliminate jurisdiction with respect to the relator. Brief for United States 44. Even if this policy concern were valid, it would not induce us to determine jurisdiction on the basis of whether the relator is an original source of information underlying allegations that he no longer makes. IV Judged according to the principles set forth above, Stone’s knowledge falls short. The only false claims ultimately found by the jury (and hence the only ones to which our jurisdictional inquiry is pertinent to the outcome) involved false statements with respect to environmental, safety, and health compliance over a one-and-a-half-year period between April 1, 1987, and September 30, 1988. As described by Stone and the Government in the final pretrial order, the only pertinent problem with respect to this period of time for which Stone claimed to have direct and independent knowledge was insolid pondcrete. Because Stone was no longer employed by Rockwell at the time, he did not know that the pondcrete was insolid; he did not know that pondcrete storage was even subject to RCRA; he did not know that Rockwell would fail to remedy the defect; he did not know that the insolid pondcrete leaked while being stored onsite; and, of course, he did not know that Rockwell made false statements to the Government regarding pondcrete storage. Stone’s prediction that the pondcrete would be insolid because of a flaw in the piping system does not qualify as “direct and independent knowledge” of the pondcrete defect. Of course a qui tam relator’s misunderstanding of why a concealed defect occurred would normally be immaterial as long as he knew the defect actually existed. But here Stone did not know that the pondcrete failed; he predicted it. Even if a prediction can qualify as direct and independent knowledge in some cases (a point we need not address), it assuredly does not do so when its premise of cause and effect is wrong. Stone’s prediction was a failed prediction, disproved by Stone’s own allegations. As Stone acknowledged, Rockwell was able to produce “concrete hard” pondcrete using the machinery Stone said was defective. According to respondents’ allegations in the final pretrial order, the insolidity problem was caused by a new foreman’s reduction of the cement-to-sludge ratio in the winter of 1986, long after Stone had left Rocky Flats. Stone counters that his original-source status with respect to his spray-irrigation claim (which related to a time period different from that for his pondcrete claim, App. 492) provided jurisdiction with respect to all of his claims. We disagree. Section 3730(e)(4) does not permit jurisdiction in gross just because a relator is an original source with respect to some claim. We, along with every court to have addressed the question, conclude that §3730(e)(4) does not permit such claim smuggling. See United States ex rel. Merena v. SmithKline Beecham Corp., 205 F. 3d 97, 102 (CA3 2000); Hays v. Hoffman, 325 F. 3d 982, 990 (CA8 2003); Wang ex rel. United States v. FMC Corp., 975 F. 2d 1412, 1415–1416, 1420 (CA9 1992). As then-Judge Alito explained, “[t]he plaintiff’s decision to join all of his or her claims in a single lawsuit should not rescue claims that would have been doomed by section (e)(4) if they had been asserted in a separate action. And likewise, this joinder should not result in the dismissal of claims that would have otherwise survived.” SmithKline Beecham, supra, at 102. Because Stone did not have direct and independent knowledge of the information upon which his allegations were based, we need not decide whether Stone met the second requirement of original-source status, that he have voluntarily provided the information to the Government before filing his action. V Respondents contend that even if Stone failed the original-source test as to his pondcrete allegations, the Government’s intervention in his case provided an independent basis of jurisdiction. Section 3730(e)(4)(A) permits jurisdiction over an action based on publicly disclosed allegations or transactions if the action is “brought by the Attorney General.” Respondents say that any inquiry into Stone’s original-source status with respect to amendments to the complaint was unnecessary because the Government had intervened, making this an “action brought by the Attorney General.”[Footnote 7] Even assuming that Stone was an original source of allegations in his initial complaint, we reject respondents’ “intervention” argument. The False Claims Act contemplates two types of actions. First, under §3730(a), “[i]f the Attorney General finds that a person has violated or is violating section 3729, the Attorney General may bring a civil action under this section against the person.” Second, under §3730(b), “[a] person may bring an action for a violation of section 3729 for the person and for the United States Government.” When a private person brings an action under §3730(b), the Government may elect to “proceed with the action,” §3730(b)(4)(A), or it may “declin[e] to take over the action, in which case the person bringing the action shall have the right to conduct the action,” §3730(b)(4)(B). The statute thus draws a sharp distinction between actions brought by the Attorney General under §3730(a) and actions brought by a private person under §3730(b). An action brought by a private person does not become one brought by the Government just because the Government intervenes and elects to “proceed with the action.” Section 3730 elsewhere refers to the Government’s “proceed[ing] with an action brought by a person under subsection (b)”—which makes crystal clear the distinction between actions brought by the Government and actions brought by a relator where the Government intervenes but does not oust the relator. Does this conclusion cast into doubt the courts’ jurisdiction with respect to the Government as well? After all, §3730(e)(4)(A) bars jurisdiction over any action brought under §3730, as this one was, unless the action is brought (1) by the Attorney General or (2) by an original source; and we have concluded that this is brought by neither. Not even petitioners have suggested the bizarre result that the Government’s judgment must be set aside. It is readily enough avoided, as common sense suggests it must be, by holding that an action originally brought by a private person, which the Attorney General has joined, becomes an action brought by the Attorney General once the private person has been determined to lack the jurisdictional prerequisites for suit. The outcome would be similar to that frequently produced in diversity-jurisdiction cases, where the “courts of appeals … have the authority to cure a jurisdictional defect by dismissing a dispensable nondiverse party.” Grupo Dataflux v. Atlas Global Group, L. P., 541 U. S. 567, 573 (2004) (citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 837 (1989)); see United States Steel Corp. v. EPA, 614 F. 2d 843, 845 (CA3 1979) (“[T]here are instances when an intervenor’s claim does not rise and fall with the claim of the original party”); 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1920, p. 491 (2d ed. 1986) (“[A]n intervenor can proceed to decision after a dismissal of the original action … if there are independent grounds for jurisdiction of the intervenor’s claim”). What is cured here, by the jurisdictional ruling regarding Stone’s claim, is the characterization of the action as one brought by an original source. The elimination of Stone leaves in place an action pursued only by the Attorney General, that can reasonably be regarded as being “brought” by him for purposes of §3730(e)(4)(A). * * * We hold that the District Court lacked jurisdiction to enter judgment in favor of Stone. We reverse the Tenth Circuit’s judgment to the contrary. It is so ordered. Justice Breyer took no part in the consideration or decision of this case. Footnote 1 Stone claimed the contrary, but the District Court found that he had failed to establish that fact. Footnote 2 Qui tam is short for “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means “who pursues this action on our Lord the King’s behalf as well as his own.” Footnote 3 The laws and regulations allegedly violated included DOE Order Nos. 5480.2 (Dec. 1982), 5483.1 as superseded by 5483.1A (June 22, 1983), and 6430.1 (Dec. 12, 1983) (DOE General Design Criteria Manual); Colo. Rev. Stat. §25–5–501 et seq. (1982) (Hazardous Substances), 25–7–101 et seq. (1982 and Supp. 1988) (Air Quality Control Program), 25–7–501 et seq. (Asbestos Control), 25–15–101 (Hazardous Waste Management Act, 25–8–201 (1982) (Water Quality Control Act), 25–11–101 (1982 and Supp. 1988) (Radiation Control), 29–22–101 (Hazardous Substance Incidents), 25–5–503 (1982), 25–8–506, 25–8–608, 25–15–308 through 25–15–310, and 29–22–108; the Occupational Safety and Health Act of 1970, 29 U. S. C. §651 et seq.; the Atomic Energy Act of 1954, as amended, 42 U. S. C. §2011 et seq.; the Energy Reorganization Act of 1974, 42 U. S. C. §5801 et seq.; the Water Pollution Prevention and Control Act, 33 U. S. C. §1251 et seq.; the Clean Air Act, 42 U. S. C. §7401 et seq.; the Safe Drinking Water Act, 42 U. S. C. §300f et seq.; and regulations promulgated under these statutes. Footnote 4 In addition to the pondcrete allegations, respondents charged Rockwell with concealing problems with “saltcrete” (a mixture of cement and salt from liquid waste treatment processes) and “spray irrigation” (a method of disposing of waste water generated by the sewage treatment plant at Rocky Flats). Footnote 5 The Courts of Appeals have divided over the question. See United States ex rel. Laird v. Lockheed Martin Eng. & Science Servs. Co., 336 F. 3d 346, 353–355 (CA5 2003) (describing the Courts of Appeals’ divergent approaches). Only by demoting the actual text of §3730(e)(4) to a footnote and then paraphrasing the statute in a way that assumes his conclusion can Justice Stevens assert (without further analysis) that the statute’s meaning is “plain.” See post, at 1, 2 (dissenting opinion). Footnote 6 It is true that, when a defendant removes a case to federal court based on the presence of a federal claim, an amendment eliminating the original basis for federal jurisdiction generally does not defeat jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 346, 357 (1988); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 293 (1938). But removal cases raise forum-manipulation concerns that simply do not exist when it is the plaintiff who chooses a federal forum and then pleads away jurisdiction through amendment. Footnote 7 The Government includes a significant caveat: In its view, intervention does not cure any pre-existing defects in Stone’s initial complaint; it only cures defects resulting from amendments to the pleadings.
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551.US.47
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The Fair Credit Reporting Act (FCRA) requires notice to a consumer subjected to “adverse action … based in whole or in part on any information contained in a consumer [credit] report.” 15 U. S. C. §1681m(a). As applied to insurance companies, “adverse action” is “a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for.” §1681a(k)(1)(B)(i). FCRA provides a private right of action against businesses that use consumer reports but fail to comply. A negligent violation entitles a consumer to actual damages, §1681o(a), and a willful one entitles the consumer to actual, statutory, and even punitive damages, §1681n(a). Petitioners in No. 06–100 (GEICO) use an applicant’s credit score to select the appropriate subsidiary insurance company and the particular rate at which a policy may be issued. GEICO sends an adverse action notice only if a neutral credit score would have put the applicant in a lower priced tier or company; the applicant is not otherwise told if he would have gotten better terms with a better credit score. Respondent Edo’s credit score was taken into account when GEICO issued him a policy, but GEICO sent no adverse action notice because his company and tier placement would have been the same with a neutral score. Edo filed a proposed class action, alleging willful violation of §1681m(a) and seeking statutory and punitive damages under §1681n(a). The District Court granted GEICO summary judgment, finding no adverse action because the premium would have been the same had Edo’s credit history not been considered. Petitioners in No. 06–100 (Safeco) also rely on credit reports to set initial insurance premiums. Respondents Burr and Massey—whom Safeco offered higher than the best rates possible without sending adverse action notices—joined a proposed class action, alleging willful violation of §1681m(a) and seeking statutory and punitive damages under §1681n(a). The District Court granted Safeco summary judgment on the ground that offering a single, initial rate for insurance cannot be “adverse action.” The Ninth Circuit reversed both judgments. In GEICO’s case, it held that an adverse action occurs whenever a consumer would have received a lower rate had his consumer report contained more favorable information. Since that would have happened to Edo, GEICO’s failure to give notice was an adverse action. The court also held that an insurer willfully fails to comply with FCRA if it acts in reckless disregard of a consumer’s FCRA rights, remanding for further proceedings on the reckless disregard issue. Relying on its decision in GEICO’s case, the Ninth Circuit rejected the District Court’s position in the Safeco case and remanded for further proceedings. Held: 1. Willful failure covers a violation committed in reckless disregard of the notice obligation. Where willfulness is a statutory condition of civil liability, it is generally taken to cover not only knowing violations of a standard, but reckless ones as well. See, e.g., McLaughlin v. Richland Shoe Co., 486 U. S. 128, 133. This construction reflects common law usage. The standard civil usage thus counsels reading §1681n(a)’s phrase “willfully fails to comply” as reaching reckless FCRA violations, both on the interpretive assumption that Congress knows how this Court construes statutes and expects it to run true to form, see Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 159, and under the rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way, Beck v. Prupis, 529 U. S. 494, 500–501. Petitioners claim that §1681n(a)’s drafting history points to a reading that liability attaches only to knowing violations, but the text as finally adopted points to the traditional understanding of willfulness in the civil sphere. Their other textual and structural arguments are also unpersuasive. Pp. 6–10. 2. Initial rates charged for new insurance policies may be adverse actions. Pp. 10–17. (a) Reading the phrase “increase in any charge for … any insurance, existing or applied for,” §1681a(k)(1)(B)(i), to include a disadvantageous rate even with no prior dealing fits with the ambitious objective of FCRA’s statement of purpose, which uses expansive terms to describe the adverse effects of unfair and inaccurate credit reporting and the responsibilities of consumer reporting agencies. See §1681(a). These descriptions do nothing to suggest that remedies for consumers disadvantaged by unsound credit ratings should be denied to first-time victims, and the legislative histories of both FCRA’s original enactment and a 1996 amendment reveal no reason to confine attention to customers and businesses with prior dealings. Finally, nothing about insurance contracts suggests that Congress meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant. Pp. 10–13. (b) An increased rate is not “based in whole or in part on” a credit report under §1681m(a) unless the report was a necessary condition of the increase. In common talk, “based on” indicates a but-for causal relationship and thus a necessary logical condition. Though some textual arguments point another way, it makes more sense to suspect that Congress meant to require notice and prompt a consumer challenge only when the consumer would gain something if the challenge succeeded. Pp. 13–14. (c) In determining whether a first-time rate is a disadvantageous increase, the baseline is the rate that the applicant would have received had the company not taken his credit score into account (the “neutral score” rate GEICO used in Edo’s case). That baseline comports with the understanding that §1681m(a) notice is required only when the credit report’s effect on the initial rate is necessary to put the consumer in a worse position than other relevant facts would have decreed anyway. Congress was more likely concerned with the practical question whether the consumer’s rate actually suffered when his credit report was taken into account than the theoretical question whether the consumer would have gotten a better rate with the best possible credit score, the baseline suggested by the Government and respondent-plaintiffs. The Government’s objection to this reading is rejected. Although the rate initially offered for new insurance is an “increase” calling for notice if it exceeds the neutral rate, once a consumer has learned that his credit report led the insurer to charge more, he need not be told with each renewal if his rate has not changed. After initial dealing between the consumer and the insurer, the baseline for “increase” is the previous rate or charge, not the “neutral” baseline that applies at the start. Pp. 15–17. 3. GEICO did not violate the statute, and while Safeco might have, it did not act recklessly. Pp. 18–21. (a) Because the initial rate GEICO offered Edo was what he would have received had his credit score not been taken into account, GEICO owed him no adverse action notice under §1681m(a). P. 18. (b) Even if Safeco violated FCRA when it failed to give Burr and Massey notice on the mistaken belief that §1681m(a) did not apply to initial applications, the company was not reckless. The common law has generally understood “recklessness” in the civil liability sphere as conduct violating an objective standard: action entailing “an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Farmer v. Brennan, 511 U. S. 825, 836. There being no indication that Congress had something different in mind, there is no reason to deviate from the common law understanding in applying the statute. See Beck v. Prupis, 529 U. S., at 500–501. Thus, a company does not act in reckless disregard of FCRA unless the action is not only a violation under a reasonable reading of the statute, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless. The negligence/recklessness line need not be pinpointed here, for Safeco’s reading of the statute, albeit erroneous, was not objectively unreasonable. Section 1681a(k)(1)(B)(i) is silent on the point from which to measure “increase,” and Safeco’s reading has a foundation in the statutory text and a sufficiently convincing justification to have persuaded the District Court to adopt it and rule in Safeco’s favor. Before these cases, no court of appeals had spoken on the issue, and no authoritative guidance has yet come from the Federal Trade Commission. Given this dearth of guidance and the less-than-pellucid statutory text, Safeco’s reading was not objectively unreasonable, and so falls well short of raising the “unjustifiably high risk” of violating the statute necessary for reckless liability. Pp. 18–21. No. 06–84, 140 Fed. Appx. 746; No. 06–100, 435 F. 3d 1081, reversed and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy and Breyer, JJ., joined, in which Scalia, J., joined as to all but footnotes 11 and 15, in which Thomas and Alito, JJ., joined as to all but Part III–A, and in which Stevens and Ginsburg, JJ., joined as to Parts I, II, III–A, and IV–B. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in part, in which Alito, J., joined. Together with No. 06–100, GEICO General Insurance Co. et al. v. Edo, also on certiorari to the same court.
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* The Fair Credit Reporting Act (FCRA or Act) requires notice to any consumer subjected to “adverse action … based in whole or in part on any information contained in a consumer [credit] report.” 15 U. S. C. §1681m(a). Anyone who “willfully fails” to provide notice is civilly liable to the consumer. §1681n(a). The questions in these consolidated cases are whether willful failure covers a violation committed in reckless disregard of the notice obligation, and, if so, whether petitioners Safeco and GEICO committed reckless violations. We hold that reckless action is covered, that GEICO did not violate the statute, and that while Safeco might have, it did not act recklessly. I A Congress enacted FCRA in 1970 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy. See 84 Stat. 1128, 15 U. S. C. §1681; TRW Inc. v. Andrews, 534 U. S. 19, 23 (2001). The Act requires, among other things, that “any person [who] takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report” must notify the affected consumer.[Footnote 1] 15 U. S. C. §1681m(a). The notice must point out the adverse action, explain how to reach the agency that reported on the consumer’s credit, and tell the consumer that he can get a free copy of the report and dispute its accuracy with the agency. Ibid. As it applies to an insurance company, “adverse action” is “a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for.” §1681a(k)(1)(B)(i). FCRA provides a private right of action against businesses that use consumer reports but fail to comply. If a violation is negligent, the affected consumer is entitled to actual damages. §1681o(a) (2000 ed., Supp. IV). If willful, however, the consumer may have actual damages, or statutory damages ranging from $100 to $1,000, and even punitive damages. §1681n(a) (2000 ed.). B Petitioner GEICO[Footnote 2] writes auto insurance through four subsidiaries: GEICO General, which sells “preferred” policies at low rates to low-risk customers; Government Employees, which also sells “preferred” policies, but only to government employees; GEICO Indemnity, which sells standard policies to moderate-risk customers; and GEICO Casualty, which sells nonstandard policies at higher rates to high-risk customers. Potential customers call a toll-free number answered by an agent of the four affiliates, who takes information and, with permission, gets the applicant’s credit score.[Footnote 3] This information goes into GEICO’s computer system, which selects any appropriate company and the particular rate at which a policy may be issued. For some time after FCRA went into effect, GEICO sent adverse action notices to all applicants who were not offered “preferred” policies from GEICO General or Government Employees. GEICO changed its practice, however, after a method to “neutralize” an applicant’s credit score was devised: the applicant’s company and tier placement is compared with the company and tier placement he would have been assigned with a “neutral” credit score, that is, one calculated without reliance on credit history.[Footnote 4] Under this new scheme, it is only if using a neutral credit score would have put the applicant in a lower priced tier or company that GEICO sends an adverse action notice; the applicant is not otherwise told if he would have gotten better terms with a better credit score. Respondent Ajene Edo applied for auto insurance with GEICO. After obtaining Edo’s credit score, GEICO offered him a standard policy with GEICO Indemnity (at rates higher than the most favorable), which he accepted. Because Edo’s company and tier placement would have been the same with a neutral score, GEICO did not give Edo an adverse action notice. Edo later filed this proposed class action against GEICO, alleging willful failure to give notice in violation of §1681m(a); he claimed no actual harm, but sought statutory and punitive damages under §1681n(a). The District Court granted summary judgment for GEICO, finding there was no adverse action when “the premium charged to [Edo] … would have been the same even if GEICO Indemnity did not consider information in [his] consumer credit history.” Edo v. GEICO Casualty Co., CV 02–678–BR, 2004 U. S. Dist. LEXIS 28522, *12 (D. Ore., Feb. 23, 2004), App. to Pet. for Cert. in No. 06–100, p. 46a. Like GEICO, petitioner Safeco[Footnote 5] relies on credit reports to set initial insurance premiums,[Footnote 6] as it did for respondents Charles Burr and Shannon Massey, who were offered higher rates than the best rates possible. Safeco sent them no adverse action notices, and they later joined a proposed class action against the company, alleging willful violation of §1681m(a) and seeking statutory and punitive damages under §1681n(a). The District Court ordered summary judgment for Safeco, on the understanding that offering a single, initial rate for insurance cannot be “adverse action.” The Court of Appeals for the Ninth Circuit reversed both judgments. In GEICO’s case, it held that whenever a consumer “would have received a lower rate for his insurance had the information in his consumer report been more favorable, an adverse action has been taken against him.” Reynolds v. Hartford Financial Servs. Group, Inc., 435 F. 3d 1081, 1093 (2006). Since a better credit score would have placed Edo with GEICO General, not GEICO Indemnity, the appeals court held that GEICO’s failure to give notice was an adverse action. The Ninth Circuit also held that an insurer “willfully” fails to comply with FCRA if it acts with “reckless disregard” of a consumer’s rights under the Act. Id., at 1099. It explained that a company would not be acting recklessly if it “diligently and in good faith attempted to fulfill its statutory obligations” and came to a “tenable, albeit erroneous, interpretation of the statute.” Ibid. The court went on to say that “a deliberate failure to determine the extent of its obligations” would not ordinarily escape liability under §1681n, any more than “reliance on creative lawyering that provides indefensible answers.” Ibid. Because the court believed that the enquiry into GEICO’s reckless disregard might turn on undisclosed circumstances surrounding GEICO’s revision of its notification policy, the Court of Appeals remanded the company’s case for further proceedings.[Footnote 7] In the action against Safeco, the Court of Appeals rejected the District Court’s position, relying on its reasoning in GEICO’s case (where it had held that the notice requirement applies to a single statement of an initial charge for a new policy). Spano v. Safeco Corp., 140 Fed. Appx. 746 (2005). The Court of Appeals also rejected Safeco’s argument that its conduct was not willful, again citing the GEICO case, and remanded for further proceedings. We consolidated the two matters and granted certiorari to resolve a conflict in the Circuits as to whether §1681n(a) reaches reckless disregard of FCRA’s obligations,[Footnote 8] and to clarify the notice requirement in §1681m(a). 548 U. S. ___ (2006). We now reverse in both cases. II GEICO and Safeco argue that liability under §1681n(a) for “willfully fail[ing] to comply” with FCRA goes only to acts known to violate the Act, not to reckless disregard of statutory duty, but we think they are wrong. We have said before that “willfully” is a “word of many meanings whose construction is often dependent on the context in which it appears,” Bryan v. United States, 524 U. S. 184, 191 (1998) (internal quotation marks omitted); and where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well, see McLaughlin v. Richland Shoe Co., 486 U. S. 128, 132–133 (1988) (“willful,” as used in a limitation provision for actions under the Fair Labor Standards Act, covers claims of reckless violation); Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 125–126 (1985) (same, as to a liquidated damages provision of the Age Discrimination in Employment Act of 1967); cf. United States v. Illinois Central R. Co., 303 U. S. 239, 242–243 (1938) (“willfully,” as used in a civil penalty provision, includes “ ‘conduct marked by careless disregard whether or not one has the right so to act’ ” (quoting United States v. Murdock, 290 U. S. 389, 395 (1933))). This construction reflects common law usage, which treated actions in “reckless disregard” of the law as “willful” violations. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §34, p. 212 (5th ed. 1984) (hereinafter Prosser and Keeton) (“Although efforts have been made to distinguish” the terms “willful,” “wanton,” and “reckless,” “such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit”). The standard civil usage thus counsels reading the phrase “willfully fails to comply” in §1681n(a) as reaching reckless FCRA violations,[Footnote 9] and this is so both on the interpretive assumption that Congress knows how we construe statutes and expects us to run true to form, see Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 159 (1993), and under the general rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way, Beck v. Prupis, 529 U. S. 494, 500–501 (2000). GEICO and Safeco argue that Congress did point to something different in FCRA, by a drafting history of §1681n(a) said to show that liability was supposed to attach only to knowing violations. The original version of the Senate bill that turned out as FCRA had two standards of liability to victims: grossly negligent violation (supporting actual damages) and willful violation (supporting actual, statutory, and punitive damages). S. 823, 91st Cong., 1st Sess., §1 (1969). GEICO and Safeco argue that since a “gross negligence” standard is effectively the same as a “reckless disregard” standard, the original bill’s “willfulness” standard must have meant a level of culpability higher than “reckless disregard,” or there would have been no requirement to show a different state of mind as a condition of the potentially much greater liability; thus, “willfully fails to comply” must have referred to a knowing violation. Although the gross negligence standard was reduced later in the legislative process to simple negligence (as it now appears in §1681o), the provision for willful liability remains unchanged and so must require knowing action, just as it did originally in the draft of §1681n. Perhaps. But Congress may have scaled the standard for actual damages down to simple negligence because it thought gross negligence, being like reckless action, was covered by willfulness. Because this alternative reading is possible, any inference from the drafting sequence is shaky, and certainly no match for the following clue in the text as finally adopted, which points to the traditional understanding of willfulness in the civil sphere. The phrase in question appears in the preamble sentence of §1681n(a): “Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer … .” Then come the details, in paragraphs (1)(A) and (1)(B), spelling out two distinct measures of damages chargeable against the willful violator. As a general matter, the consumer may get either actual damages or “damages of not less than $100 and not more than $1,000.” §1681n(a)(1)(A). But where the offender is liable “for obtaining a consumer report under false pretenses or knowingly without a permissible purpose,” the statute sets liability higher: “actual damages … or $1,000, whichever is greater.” §1681n(a)(1)(B). If the companies were right that “willfully” limits liability under §1681n(a) to knowing violations, the modifier “knowingly” in §1681n(a)(1)(B) would be superfluous and incongruous; it would have made no sense for Congress to condition the higher damages under §1681n(a) on knowingly obtaining a report without a permissible purpose if the general threshold of any liability under the section were knowing misconduct. If, on the other hand, “willfully” covers both knowing and reckless disregard of the law, knowing violations are sensibly understood as a more serious subcategory of willful ones, and both the preamble and the subsection have distinct jobs to do. See United States v. Menasche, 348 U. S. 528, 538–539 (1955) (“ ‘[G]ive effect, if possible, to every clause and word of a statute’ ” (quoting Montclair v. Ramsdell, 107 U. S. 147, 152 (1883))). The companies make other textual and structural arguments for their view, but none is persuasive. Safeco thinks our reading would lead to the absurd result that one could, with reckless disregard, knowingly obtain a consumer report without a permissible purpose. But this is not so; action falling within the knowing subcategory does not simultaneously fall within the reckless alternative. Then both GEICO and Safeco argue that the reference to acting “knowingly and willfully” in FCRA’s criminal enforcement provisions, §1681q and §1681r, indicates that “willfully” cannot include recklessness. But we are now on the criminal side of the law, where the paired modifiers are often found, see, e.g., 18 U. S. C. §1001 (2000 ed. and Supp. IV) (false statements to federal investigators); 20 U. S. C. §1097(a) (embezzlement of student loan funds); 18 U. S. C. §1542 (2000 ed. and Supp. IV) (false statements in a passport application). As we said before, in the criminal law “willfully” typically narrows the otherwise sufficient intent, making the government prove something extra, in contrast to its civil-law usage, giving a plaintiff a choice of mental states to show in making a case for liability, see n. 9, supra. The vocabulary of the criminal side of FCRA is consequently beside the point in construing the civil side. III A Before getting to the claims that the companies acted recklessly, we have the antecedent question whether either company violated the adverse action notice requirement at all. In both cases, respondent-plaintiffs’ claims are premised on initial rates charged for new insurance policies, which are not “adverse” actions unless quoting or charging a first-time premium is “an increase in any charge for … any insurance, existing or applied for.” 15 U. S. C. §1681a(k)(1)(B)(i). In Safeco’s case, the District Court held that the initial rate for a new insurance policy cannot be an “increase” because there is no prior dealing. The phrase “increase in any charge for … insurance” is readily understood to mean a change in treatment for an insured, which assumes a previous charge for comparison. See Webster’s New International Dictionary 1260 (2d ed. 1957) (defining “increase” as “[a]ddition or enlargement in size, extent, quantity, number, intensity, value, substance, etc.; augmentation; growth; multiplication”). Since the District Court understood “increase” to speak of change just as much as of comparative size or quantity, it reasoned that the statute’s “increase” never touches the initial rate offer, where there is no change. The Government takes the part of the Court of Appeals in construing “increase” to reach a first-time rate. It says that regular usage of the term is not as narrow as the District Court thought: the point from which to measure difference can just as easily be understood without referring to prior individual dealing. The Government gives the example of a gas station owner who charges more than the posted price for gas to customers he doesn’t like; it makes sense to say that the owner increases the price and that the driver pays an increased price, even if he never pulled in there for gas before. See Brief for United States as Amicus Curiae 26.[Footnote 10] The Government implies, then, that reading “increase” requires a choice, and the chosen reading should be the broad one in order to conform to what Congress had in mind. We think the Government’s reading has the better fit with the ambitious objective set out in the Act’s statement of purpose, which uses expansive terms to describe the adverse effects of unfair and inaccurate credit reporting and the responsibilities of consumer reporting agencies. See §1681(a) (inaccurate reports “directly impair the efficiency of the banking system”; unfair reporting methods undermine public confidence “essential to the continued functioning of the banking system”; need to “insure” that reporting agencies “exercise their grave responsibilities” fairly, impartially, and with respect for privacy). The descriptions of systemic problem and systemic need as Congress saw them do nothing to suggest that remedies for consumers placed at a disadvantage by unsound credit ratings should be denied to first-time victims, and the legislative histories of FCRA’s original enactment and of the 1996 amendment reveal no reason to confine attention to customers and businesses with prior dealings. Quite the contrary.[Footnote 11] Finally, there is nothing about insurance contracts to suggest that Congress might have meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant.[Footnote 12] We therefore hold that the “increase” required for “adverse action,” 15 U. S. C. §1681a(k)(1)(B)(i), speaks to a disadvantageous rate even with no prior dealing; the term reaches initial rates for new applicants. B Although offering the initial rate for new insurance can be an “adverse action,” respondent-plaintiffs have another hurdle to clear, for §1681m(a) calls for notice only when the adverse action is “based in whole or in part on” a credit report. GEICO argues that in order to have adverse action “based on” a credit report, consideration of the report must be a necessary condition for the increased rate. The Government and respondent-plaintiffs do not explicitly take a position on this point. To the extent there is any disagreement on the issue, we accept GEICO’s reading. In common talk, the phrase “based on” indicates a but-for causal relationship and thus a necessary logical condition. Under this most natural reading of §1681m(a), then, an increased rate is not “based in whole or in part on” the credit report unless the report was a necessary condition of the increase. As before, there are textual arguments pointing another way. The statute speaks in terms of basing the action “in part” as well as wholly on the credit report, and this phrasing could mean that adverse action is “based on” a credit report whenever the report was considered in the rate-setting process, even without being a necessary condition for the rate increase. But there are good reasons to think Congress preferred GEICO’s necessary-condition reading. If the statute has any claim to lucidity, not all “adverse actions” require notice, only those “based … on” information in a credit report. Since the statute does not explicitly call for notice when a business acts adversely merely after consulting a report, conditioning the requirement on action “based … on” a report suggests that the duty to report arises from some practical consequence of reading the report, not merely some subsequent adverse occurrence that would have happened anyway. If the credit report has no identifiable effect on the rate, the consumer has no immediately practical reason to worry about it (unless he has the power to change every other fact that stands between himself and the best possible deal); both the company and the consumer are just where they would have been if the company had never seen the report.[Footnote 13] And if examining reports that make no difference was supposed to trigger a reporting requirement, it would be hard to find any practical point in imposing the “based … on” restriction. So it makes more sense to suspect that Congress meant to require notice and prompt a challenge by the consumer only when the consumer would gain something if the challenge succeeded.[Footnote 14] C To sum up, the difference required for an increase can be understood without reference to prior dealing (allowing a first-time applicant to sue), and considering the credit report must be a necessary condition for the difference. The remaining step in determining a duty to notify in cases like these is identifying the benchmark for determining whether a first-time rate is a disadvantageous increase. And in dealing with this issue, the pragmatic reading of “based … on” as a condition necessary to make a practical difference carries a helpful suggestion. The Government and respondent-plaintiffs argue that the baseline should be the rate that the applicant would have received with the best possible credit score, while GEICO contends it is what the applicant would have had if the company had not taken his credit score into account (the “neutral score” rate GEICO used in Edo’s case). We think GEICO has the better position, primarily because its “increase” baseline is more comfortable with the understanding of causation just discussed, which requires notice under §1681m(a) only when the effect of the credit report on the initial rate offered is necessary to put the consumer in a worse position than other relevant facts would have decreed anyway. If Congress was this concerned with practical consequences when it adopted a “based … on” causation standard, it presumably thought in equally practical terms when it spoke of an “increase” that must be defined by a baseline to measure from. Congress was therefore more likely concerned with the practical question whether the consumer’s rate actually suffered when the company took his credit report into account than the theoretical question whether the consumer would have gotten a better rate with perfect credit.[Footnote 15] The Government objects that this reading leaves a loophole, since it keeps first-time applicants who actually deserve better-than-neutral credit scores from getting notice, even when errors in credit reports saddle them with unfair rates. This is true; the neutral-score baseline will leave some consumers without a notice that might lead to discovering errors. But we do not know how often these cases will occur, whereas we see a more demonstrable and serious disadvantage inhering in the Government’s position. Since the best rates (the Government’s preferred baseline) presumably go only to a minority of consumers, adopting the Government’s view would require insurers to send slews of adverse action notices; every young applicant who had yet to establish a gilt-edged credit report, for example, would get a notice that his charge had been “increased” based on his credit report. We think that the consequence of sending out notices on this scale would undercut the obvious policy behind the notice requirement, for notices as common as these would take on the character of formalities, and formalities tend to be ignored. It would get around that new insurance usually comes with an adverse action notice, owing to some legal quirk, and instead of piquing an applicant’s interest about the accuracy of his credit record, the commonplace notices would mean just about nothing and go the way of junk mail. Assuming that Congress meant a notice of adverse action to get some attention, we think the cost of closing the loophole would be too high. While on the subject of hypernotification, we should add a word on another point of practical significance. Although the rate initially offered for new insurance is an “increase” calling for notice if it exceeds the neutral rate, did Congress intend the same baseline to apply if the quoted rate remains the same over a course of dealing, being repeated at each renewal date? We cannot believe so. Once a consumer has learned that his credit report led the insurer to charge more, he has no need to be told over again with each renewal if his rate has not changed. For that matter, any other construction would probably stretch the word “increase” more than it could bear. Once the gas station owner had charged the customer the above-market price, it would be strange to speak of the same price as an increase every time the customer pulled in. Once buyer and seller have begun a course of dealing, customary usage does demand a change for “increase” to make sense.[Footnote 16] Thus, after initial dealing between the consumer and the insurer, the baseline for “increase” is the previous rate or charge, not the “neutral” baseline that applies at the start. IV A In GEICO’s case, the initial rate offered to Edo was the one he would have received if his credit score had not been taken into account, and GEICO owed him no adverse action notice under §1681m(a).[Footnote 17] B Safeco did not give Burr and Massey any notice because it thought §1681m(a) did not apply to initial applications, a mistake that left the company in violation of the statute if Burr and Massey received higher rates “based in whole or in part” on their credit reports; if they did, Safeco would be liable to them on a showing of reckless conduct (or worse). The first issue we can forget, however, for although the record does not reliably indicate what rates they would have obtained if their credit reports had not been considered, it is clear enough that if Safeco did violate the statute, the company was not reckless in falling down in its duty. While “the term recklessness is not self-defining,” the common law has generally understood it in the sphere of civil liability as conduct violating an objective standard: action entailing “an unjustifiably high risk of harm that is either known or so obvious that it should be known.”[Footnote 18] Farmer v. Brennan, 511 U. S. 825, 836 (1994); see Prosser and Keeton §34, at 213–214. The Restatement, for example, defines reckless disregard of a person’s physical safety this way: “The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” Restatement (Second) of Torts §500, p. 587 (1963–1964). It is this high risk of harm, objectively assessed, that is the essence of recklessness at common law. See Prosser and Keeton §34, at 213 (recklessness requires “a known or obvious risk that was so great as to make it highly probable that harm would follow”). There being no indication that Congress had something different in mind, we have no reason to deviate from the common law understanding in applying the statute. See Prupis, 529 U. S., at 500–501. Thus, a company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute’s terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless. Here, there is no need to pinpoint the negligence/recklessness line, for Safeco’s reading of the statute, albeit erroneous, was not objectively unreasonable. As we said, §1681a(k)(1)(B)(i) is silent on the point from which to measure “increase.” On the rationale that “increase” presupposes prior dealing, Safeco took the definition as excluding initial rate offers for new insurance, and so sent no adverse action notices to Burr and Massey. While we disagree with Safeco’s analysis, we recognize that its reading has a foundation in the statutory text, see supra, at 11, and a sufficiently convincing justification to have persuaded the District Court to adopt it and rule in Safeco’s favor. This is not a case in which the business subject to the Act had the benefit of guidance from the courts of appeals or the Federal Trade Commission (FTC) that might have warned it away from the view it took. Before these cases, no court of appeals had spoken on the issue, and no authoritative guidance has yet come from the FTC[Footnote 19] (which in any case has only enforcement responsibility, not substantive rulemaking authority, for the provisions in question, see 15 U. S. C. §§1681s(a)(1), (e)). Cf. Saucier v. Katz, 533 U. S. 194, 202 (2001) (assessing, for qualified immunity purposes, whether an action was reasonable in light of legal rules that were “clearly established” at the time). Given this dearth of guidance and the less-than-pellucid statutory text, Safeco’s reading was not objectively unreasonable, and so falls well short of raising the “unjustifiably high risk” of violating the statute necessary for reckless liability.[Footnote 20] * * * The Court of Appeals correctly held that reckless disregard of a requirement of FCRA would qualify as a willful violation within the meaning of §1681n(a). But there was no need for that court to remand the cases for factual development. GEICO’s decision to issue no adverse action notice to Edo was not a violation of §1681m(a), and Safeco’s misreading of the statute was not reckless. The judgments of the Court of Appeals are therefore reversed in both cases, which are remanded for further proceedings consistent with this opinion. It is so ordered. * Justice Scalia joins all but footnotes 11 and 15 of this opinion. Footnote 1 So far as it matters here, the Act defines “consumer report” as “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, [or] credit capacity … which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for … credit or insurance to be used primarily for personal, family, or household purposes.” 15 U. S. C. §1681a(d)(1) (footnote omitted). The scope of this definition is not at issue. Footnote 2 The specific petitioners are subsidiary companies of the GEICO Corporation; for the sake of convenience, we call them “GEICO” collectively. Footnote 3 The Act defines a “credit score” as “a numerical value or a categorization derived from a statistical tool or modeling system used by a person who makes or arranges a loan to predict the likelihood of certain credit behaviors, including default.” 15 U. S. C. §1681g(f)(2)(A) (2000 ed., Supp. IV). Under its contract with its credit information providers, GEICO learned credit scores and facts in the credit reports that significantly influenced the scores, but did not have access to the credit reports themselves. Footnote 4 A number of States permit the use of such “neutral” credit scores to ensure that consumers with thin or unidentifiable credit histories are not treated disadvantageously. See, e.g., N. Y. Ins. Law Ann. §§2802(e), (e)(1) (West 2006) (generally prohibiting an insurer from “consider[ing] an absence of credit information,” but allowing it to do so if it “treats the consumer as if the applicant or insured had neutral credit information, as defined by the insurer”). Footnote 5 Again, the actual petitioners are subsidiary companies, of Safeco Corporation in this case; for convenience, we call them “Safeco” collectively. Footnote 6 The parties do not dispute that the credit scores and credit reports relied on by GEICO and Safeco are “consumer reports” under 15 U. S. C. §1681a(d)(1). Footnote 7 Prior to issuing its final opinion in this case, the Court of Appeals had issued, then withdrawn, two opinions in which it held that GEICO had “willfully” violated FCRA as a matter of law. Reynolds v. Hartford Financial Servs. Group, Inc., 416 F. 3d 1097 (CA9 2005); Reynolds v. Hartford Financial Servs. Group, Inc., 426 F. 3d 1020 (CA9 2005). Footnote 8 Compare, e.g., Cushman v. Trans Union Corp., 115 F. 3d 220, 227 (CA3 1997) (adopting the “reckless disregard” standard), with Wantz v. Experian Information Solutions, 386 F. 3d 829, 834 (CA7 2004) (construing “willfully” to require that a user “knowingly and intentionally violate the Act”); Phillips v. Grendahl, 312 F. 3d 357, 368 (CA8 2002) (same). Footnote 9 It is different in the criminal law. When the term “willful” or “willfully” has been used in a criminal statute, we have regularly read the modifier as limiting liability to knowing violations. See Ratzlaf v. United States, 510 U. S. 135, 137 (1994); Bryan v. United States, 524 U. S. 184, 191–192 (1998); Cheek v. United States, 498 U. S. 192, 200–201 (1991). This reading of the term, however, is tailored to the criminal law, where it is characteristically used to require a criminal intent beyond the purpose otherwise required for guilt, Ratzlaf, supra, at 136–137; or an additional “ ‘bad purpose,’ ” Bryan, supra, at 191; or specific intent to violate a known legal duty created by highly technical statutes, Cheek, supra, at 200–201. Thus we have consistently held that a defendant cannot harbor such criminal intent unless he “acted with knowledge that his conduct was unlawful.” Bryan, supra, at 193. Civil use of the term, however, typically presents neither the textual nor the substantive reasons for pegging the threshold of liability at knowledge of wrongdoing. Cf. Farmer v. Brennan, 511 U. S. 825, 836–837 (1994) (contrasting the different uses of the term “recklessness” in civil and criminal contexts). Footnote 10 Since the posted price seems to be addressed to the world in general, one could argue that the increased gas price is not the initial quote. But the same usage point can be made with the example of the clothing model who gets a call from a ritzy store after posing for a discount retailer. If she quotes a higher fee, it would be natural to say that the uptown store will have to pay the “increase” to have her in its ad. Footnote 11 See S. Rep. No. 91–517, p. 7 (1969) (“Those who … charge a higher rate for credit or insurance wholly or partly because of a consumer report must, upon written request, so advise the consumer …”); S. Rep. No. 103–209, p. 4 (1993) (adverse action notice is required “any time the permissible use of a report results in an outcome adverse to the interests of the consumer”); H. R. Rep. No. 103–486, p. 26 (1994) (“[W]henever a consumer report is obtained for a permissible purpose … , any action taken based on that report that is adverse to the interests of the consumer triggers the adverse action notice requirements”). Footnote 12 In fact, notice in the context of an initially offered rate may be of greater significance than notice in the context of a renewal rate; if, for instance, insurance is offered on the basis of a single, long-term guaranteed rate, a consumer who is not given notice during the initial application process may never have an opportunity to learn of any adverse treatment. Footnote 13 For instance, if a consumer’s driving record is so poor that no insurer would give him anything but the highest possible rate regardless of his credit report, whether or not an insurer happened to look at his credit report should have no bearing on whether the consumer must receive notice, since he has not been treated differently as a result of it. Footnote 14 The history of the Act provides further support for this reading. The originally enacted version of the notice requirement stated: “Whenever … the charge for … insurance is increased either wholly or partly because of information contained in a consumer report … , the user of the consumer report shall so advise the consumer … .” 15 U. S. C. §1681m(a) (1976 ed.). The “because of” language in the original statute emphasized that the consumer report must actually have caused the adverse action for the notice requirement to apply. When Congress amended FCRA in 1996, it sought to define “adverse action” with greater particularity, and thus split the notice provision into two separate subsections. See 110 Stat. 3009–426 to 3009–427, 3009–443 to 3009–444. In the revised version of §1681m(a), the original “because of” phrasing changed to “based on,” but there was no indication that this change was meant to be a substantive alteration of the statute’s scope. Footnote 15 While it might seem odd, under the current statutory structure, to interpret the definition of “adverse action” (in §1681a(k)(1)(B)(i)) in conjunction with §1681m(a), which simply applies the notice requirement to a particular subset of “adverse actions,” there are strong indications that Congress intended these provisions to be construed in tandem. When FCRA was initially enacted, the link between the definition of “adverse action” and the notice requirement was clear, since “adverse action” was defined within §1681m(a). See 15 U. S. C. §1681m(a) (1976 ed.). Though Congress eventually split the provision into two parts (with the definition of “adverse action” now located at §1681a(k)(1)(B)(i)), the legislative history suggests that this change was not meant to alter Congress’s intent to define “adverse action” in light of the notice requirement. See S. Rep. No. 103–209, at 4 (“The Committee bill … defines an ‘adverse action’ as any action that is adverse to the interests of the consumer and is based in whole or in part on a consumer report”); H. R. Rep. No. 103–486, at 26 (“[A]ny action based on [a consumer] report that is adverse to the interests of the consumer triggers the adverse action notice requirements”). Footnote 16 Consider, too, a consumer who, at the initial application stage, had a perfect credit score and thus obtained the best insurance rate, but, at the renewal stage, was charged at a higher rate (but still lower than the rate he would have received had his credit report not been taken into account) solely because his credit score fell during the interim. Although the consumer clearly suffered an “increase” in his insurance rate that was “based on” his credit score, he would not be entitled to an adverse action notice under the baseline used for initial applications. Footnote 17 We reject Edo’s alternative argument that GEICO’s offer of a standard insurance policy with GEICO Indemnity was an “adverse action” requiring notice because it amounted to a “denial” of insurance through a lower cost, “preferred” policy with GEICO General. See §1681a(k)(1)(B)(i) (defining “adverse action” to include a “denial … of … insurance”). An applicant calling GEICO for insurance talks with a sales representative who acts for all the GEICO companies. The record has no indication that GEICO tells applicants about its corporate structure, or that applicants request insurance from one of the several companies or even know of their separate existence. The salesperson takes information from the applicant and obtains his credit score, then either denies any insurance or assigns him to one of the companies willing to provide it; the other companies receive no application and take no separate action. This way of accepting new business is clearly outside the natural meaning of “denial” of insurance. Footnote 18 Unlike civil recklessness, criminal recklessness also requires subjective knowledge on the part of the offender. Brennan, 511 U. S., at 836–837; ALI, Model Penal Code §2.02(2)(c) (1985). Footnote 19 Respondent-plaintiffs point to a letter, written by an FTC staff member to an insurance company lawyer, that suggests that an “adverse action” occurs when “the applicant will have to pay more for insurance at the inception of the policy than he or she would have been charged if the consumer report had been more favorable.” Letter from Hannah A. Stires to James M. Ball (Mar. 1, 2000), http://www.ftc.gov/os/statutes/fcra/ball.htm (as visited May 17, 2007, and available in Clerk of Court’s case file). But the letter did not canvas the issue, and it explicitly indicated that it was merely “an informal staff opinion … not binding on the Commission.” Ibid. Footnote 20 Respondent-plaintiffs argue that evidence of subjective bad faith must be taken into account in determining whether a company acted knowingly or recklessly for purposes of §1681n(a). To the extent that they argue that evidence of subjective bad faith can support a willfulness finding even when the company’s reading of the statute is objectively reasonable, their argument is unsound. Where, as here, the statutory text and relevant court and agency guidance allow for more than one reasonable interpretation, it would defy history and current thinking to treat a defendant who merely adopts one such interpretation as a knowing or reckless violator. Congress could not have intended such a result for those who followed an interpretation that could reasonably have found support in the courts, whatever their subjective intent may have been. Both Safeco and GEICO argue that good-faith reliance on legal advice should render companies immune to claims raised under §1681n(a). While we do not foreclose this possibility, we need not address the issue here in light of our present holdings.
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550.US.465
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Respondent Landrigan refused to allow his counsel to present the testimony of his ex-wife and birth mother as mitigating evidence at his sentencing hearing for a felony-murder conviction. He also interrupted as counsel tried to proffer other evidence, and he told the Arizona trial judge he did not wish to present any mitigating evidence and to “bring on” the death penalty. The court sentenced him to death, and the sentence was affirmed. The state postconviction court rejected Landrigan’s claim that his counsel was ineffective for failing to conduct further investigation into mitigating circumstances, finding that he had instructed counsel at sentencing not to present any mitigating evidence at all. Landrigan then filed a federal habeas petition under 28 U. S. C. §2254. Exercising its discretion, the District Court refused to grant him an evidentiary hearing because he could not make out even a colorable ineffective-assistance-of-counsel claim. The en banc Ninth Circuit reversed, holding that Landrigan’s counsel’s performance fell below the standard required by Strickland v. Washington, 466 U. S. 668. Held: The District Court did not abuse its discretion in refusing to grant Landrigan an evidentiary hearing. Pp. 6–15. (a) The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) has not changed the basic rule that the decision to grant an evidentiary hearing is left to the district court’s sound discretion, but it has changed the standards for granting federal habeas relief by prohibiting such relief unless a state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this Court],” §2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” §2254(d)(2). Because §2254’s deferential standards control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate. In deciding whether to grant an evidentiary hearing, a federal court must consider whether the hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief. It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing. Pp. 6–8. (b) Contrary to the Ninth Circuit’s reasoning, the District Court was well within its discretion to determine that, even with the benefit of an evidentiary hearing, Landrigan could not develop a factual record entitling him to federal habeas relief. Pp. 8–13. (1) The Ninth Circuit concluded that the Arizona state courts’ findings that Landrigan had instructed his counsel not to offer any mitigating evidence took Landrigan’s sentencing colloquy out of context, amounting to an unreasonable determination of the facts. However, the colloquy’s language plainly indicates that Landrigan told his counsel not to present any mitigating evidence, and the record conclusively dispels the Circuit’s conclusion that Landrigan’s statements referred to only his ex-wife’s and birth mother’s testimony. On that record, the state court’s determination that Landrigan refused to allow the presentation of any mitigating evidence was a reasonable determination of the facts. Thus, it was not an abuse of discretion for the District Court to conclude that Landrigan could not overcome §2254(d)(2)’s bar to granting federal habeas relief. That court was entitled to conclude that regardless of what information counsel might have uncovered in his investigation, Landrigan would have interrupted and refused to allow him to present it. Thus, it could conclude that because of his established recalcitrance, Landrigan could not demonstrate prejudice under Strickland even if granted an evidentiary hearing. Pp. 8–10. (2) The Ninth Circuit also erred in finding two alternative reasons for its holding. It concluded that the Arizona courts’ determination that Landrigan’s claims were frivolous and meritless was an unreasonable application of this Court’s precedent, based on the belief, derived from Wiggins v. Smith, 539 U. S. 510, that his last minute decision to block testimony could not excuse his counsel’s failure to do an adequate investigation before sentencing. However, this Court has never addressed a situation in which a client interferes with counsel’s efforts to present mitigating evidence to a sentencing court. Thus, it was not objectively unreasonable for the Arizona postconviction court to conclude that a defendant who refused to allow any mitigating evidence to be presented could not establish Strickland prejudice based on his counsel’s failure to investigate further possible mitigating evidence. The Ninth Circuit also found that the record does not indicate that Landrigan’s decision was informed and knowing, or that he understood its consequences. This Court has never held that an “informed and knowing” requirement exists with respect to the decision to not introduce mitigating evidence. But even assuming such a requirement exists in this case, Landrigan cannot benefit from it. First, because he never developed his claim properly before the Arizona courts, §2254(e)(2) barred the District Court from granting an evidentiary hearing on that basis. Second, his counsel told the sentencing court in Landrigan’s presence that he had carefully explained to Landrigan the importance of mitigating evidence in death penalty cases and his duty as counsel to disclose mitigating factors for consideration. In light of Landrigan’s demonstrated propensity for interjecting himself into the proceedings, it is doubtful that he would have sat idly by while counsel lied about such discussions. Third, it is apparent from Landrigan’s statement to the sentencing court to bring on the death penalty that he clearly understood the consequences of telling the judge that there were no relevant mitigating circumstances. Pp. 11–13. (c) The Ninth Circuit also erred in rejecting the District Court’s finding that the poor quality of Landrigan’s alleged mitigating evidence prevented him from making a colorable prejudice claim. Because most of the evidence that Landrigan now wishes to offer would have been offered by this birth mother and ex-wife had he allowed them to testify, and because the sentencing court had much of the evidence before it by way of counsel’s proffer, the District Court could reasonably conclude that any additional evidence would have made no difference in the sentencing. Pp. 13–14. (d) Even assuming the truth of all the facts Landrigan sought to prove at an evidentiary hearing, he still could not be granted federal habeas relief because the state courts’ factual determination that he would not have allowed counsel to present any mitigating evidence at sentencing is not an unreasonable determination of the facts under §2254(d)(2) and the mitigating evidence he seeks to introduce would not have changed the result. Pp. 14–15. 441 F. 3d 638, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined.
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In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U. S. C. §2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court. Here, the District Court determined that respondent could not make out a colorable claim of ineffective assistance of counsel and therefore was not entitled to an evidentiary hearing. It did so after reviewing the state-court record and expanding the record to include additional evidence offered by the respondent. The Court of Appeals held that the District Court abused its discretion in refusing to grant the hearing. We hold that it did not. I Respondent Jeffrey Landrigan was convicted in Oklahoma of second-degree murder in 1982. In 1986, while in custody for that murder, Landrigan repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered Chester Dean Dyer in Arizona. An Arizona jury found Landrigan guilty of theft, second-degree burglary, and felony murder for having caused the victim’s death in the course of a burglary. At sentencing, Landrigan’s counsel attempted to present the testimony of Landrigan’s ex-wife and birth mother as mitigating evidence. But at Landrigan’s request, both women refused to testify. When the trial judge asked why the witnesses refused, Landrigan’s counsel responded that “it’s at my client’s wishes.” App. to Pet. for Cert. D–3. Counsel explained that he had “advised [Landrigan] very strongly that I think it’s very much against his interests to take that particular position.” Ibid. The court then questioned Landrigan: “THE COURT: Mr. Landrigan, have you instructed your lawyer that you do not wish for him to bring any mitigating circumstances to my attention? “THE DEFENDANT: Yeah. “THE COURT: Do you know what that means? “THE DEFENDANT: Yeah. “THE COURT: Mr. Landrigan, are there mitigating circumstances I should be aware of? “THE DEFENDANT: Not as far as I’m concerned.” Id., at D–3, D–4. Still not satisfied, the trial judge directly asked the witnesses to testify. Both refused. The judge then asked counsel to make a proffer of the witnesses’ testimony. Counsel attempted to explain that the witnesses would testify that Landrigan’s birth mother used drugs and alcohol (including while she was pregnant with Landrigan), that Landrigan abused drugs and alcohol, and that Landrigan had been a good father. But Landrigan would have none of it. When counsel tried to explain that Landrigan had worked in a legitimate job to provide for his family, Landrigan interrupted and stated “[i]f I wanted this to be heard, I’d have my wife say it.” Id., at D–6. Landrigan then explained that he was not only working but also “doing robberies supporting my family.” Id., at D–7. When counsel characterized Landrigan’s first murder as having elements of self-defense, Landrigan interrupted and clarified: “He didn’t grab me. I stabbed him.” Id., at D–9. Responding to counsel’s statement implying that the prison stabbing involved self-defense because the assaulted inmate knew Landrigan’s first murder victim, Landrigan interrupted to clarify that the inmate was not acquainted with his first victim, but just “a guy I got in an argument with. I stabbed him 14 times. It was lucky he lived.” Ibid. At the conclusion of the sentencing hearing, the judge asked Landrigan if he had anything to say. Landrigan made a brief statement that concluded, “I think if you want to give me the death penalty, just bring it right on. I’m ready for it.” Id., at D–16. The trial judge found two statutory aggravating circumstances: that Landrigan murdered Dyer in expectation of pecuniary gain and that Landrigan was previously convicted of two felonies involving the use or threat of violence on another person. Id., at D–23. In addition, the judge found two nonstatutory mitigating circumstances: that Landrigan’s family loved him and an absence of premeditation. Ibid. Finally, the trial judge stated that she considered Landrigan “a person who has no scruples and no regard for human life and human beings.” Ibid. Based on these findings, the court sentenced Landrigan to death. On direct appeal, the Arizona Supreme Court unanimously affirmed Landrigan’s sentence and conviction. In addressing an ineffective-assistance-of-counsel claim not relevant here, the court noted that Landrigan had stated his “desire not to have mitigating evidence presented in his behalf.” State v. Landrigan, 176 Ariz. 1, 8, 859 P. 2d 111, 118 (1993). On January 31, 1995, Landrigan filed a petition for state postconviction relief and alleged his counsel’s “fail[ure] to explore additional grounds for arguing mitigation evidence.” App. to Pet. for Cert. F–3 (internal quotation marks omitted). Specifically, Landrigan maintained that his counsel should have investigated the “biological component” of his violent behavior by interviewing his biological father and other relatives. Id., at E–2. In addition, Landrigan stated that his biological father could confirm that his biological mother used drugs and alcohol while pregnant with Landrigan. Ibid. The Arizona postconviction court, presided over by the same judge who tried and sentenced Landrigan, rejected Landrigan’s claim. The court found that “[Landrigan] instructed his attorney not to present any evidence at the sentencing hearing, [so] it is difficult to comprehend how [Landrigan] can claim counsel should have presented other evidence at sentencing.” Id., at F–4. Noting Landrigan’s contention that he “ ‘would have cooperated’ ” had other mitigating evidence been presented, the court concluded that Landrigan’s “statements at sentencing belie his new-found sense of cooperation.” Ibid. Describing Landrigan’s claim as “frivolous,” id., at F–5, the court declined to hold an evidentiary hearing and dismissed Landrigan’s petition. The Arizona Supreme Court denied Landrigan’s petition for review on June 19, 1996. Landrigan then filed a federal habeas application under §2254. The District Court determined, after “expand[ing] the record to include … evidence of [Landrigan’s] troubled background, his history of drug and alcohol abuse, and his family’s history of criminal behavior,” id., at C–22, that Landrigan could not demonstrate that he was prejudiced by any error his counsel may have made. Because Landrigan could not make out even a “colorable” ineffective-assistance-of-counsel claim, id., at C–46, the District Court refused to grant him an evidentiary hearing. On appeal, a unanimous panel of the Court of Appeals for the Ninth Circuit affirmed, but the full court granted rehearing en banc, Landrigan v. Stewart, 397 F. 3d 1235 (2005), and reversed. The en banc Court of Appeals held that Landrigan was entitled to an evidentiary hearing because he raised a “colorable claim” that his counsel’s performance fell below the standard required by Strickland v. Washington, 466 U. S. 668 (1984). 441 F. 3d 638, 650 (CA9 2006). With respect to counsel’s performance, the Ninth Circuit found that he “did little to prepare for the sentencing aspect of the case,” id., at 643, and that investigation would have revealed a wealth of mitigating evidence, including the family’s history of drug and alcohol abuse and propensity for violence. Turning to prejudice, the court held the Arizona postconviction court’s determination that Landrigan refused to permit his counsel to present any mitigating evidence was “an ‘unreasonable determination of the facts.’ ” Id., at 647 (quoting 28 U. S. C. §2254(d)(2)). The Court of Appeals found that when Landrigan stated that he did not want his counsel to present any mitigating evidence, he was clearly referring only to the evidence his attorney was about to introduce—that of his ex-wife and birth mother. 441 F. 3d, at 646. The court further held that, even if Landrigan intended to forgo the presentation of all mitigation evidence, such a “last-minute decision cannot excuse his counsel’s failure to conduct an adequate investigation prior to the sentencing.” Id., at 647. In conclusion, the court found “a reasonable probability that, if Landrigan’s allegations are true, the sentencing judge would have reached a different conclusion.” Id., at 650. The court therefore remanded the case for an evidentiary hearing. We granted certiorari and now reverse. II Prior to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, the decision to grant an evidentiary hearing was generally left to the sound discretion of district courts. Brown v. Allen, 344 U. S. 443, 463–464 (1953); see also Townsend v. Sain, 372 U. S. 293, 313 (1963). That basic rule has not changed. See 28 U. S. C. §2254, Rule 8(a) (“[T]he judge must review the answer [and] any transcripts and records of state-court proceedings … to determine whether an evidentiary hearing is warranted”). AEDPA, however, changed the standards for granting federal habeas relief.[Footnote 1] Under AEDPA, Congress prohibited federal courts from granting habeas relief unless a state court’s adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” §2254(d)(1), or the relevant state-court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” §2254(d)(2). The question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold. See Williams v. Taylor, 529 U. S. 362, 410 (2000). AEDPA also requires federal habeas courts to presume the correctness of state courts’ factual findings unless applicants rebut this presumption with “clear and convincing evidence.” §2254(e)(1). In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief. See, e.g., Mayes v. Gibson, 210 F. 3d 1284, 1287 (CA10 2000). Because the deferential standards prescribed by §2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate. See id., at 1287–1288 (“Whether [an applicant’s] allegations, if proven, would entitle him to habeas relief is a question governed by [AEDPA]”).[Footnote 2] It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing. The Ninth Circuit has recognized this point in other cases, holding that “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record.” Totten v. Merkle, 137 F. 3d 1172, 1176 (1998) (emphasis deleted) (affirming the denial of an evidentiary hearing where the applicant’s factual allegations “fl[ew] in the face of logic in light of … [the applicant’s] deliberate acts which are easily discernible from the record”). This approach is not unique to the Ninth Circuit. See Anderson v. Attorney General of Kan., 425 F. 3d 853, 858–859 (CA10 2005) (holding that no evidentiary hearing is required if the applicant’s allegations are contravened by the existing record); cf. Clark v. Johnson, 202 F. 3d 760, 767 (CA5 2000) (holding that no hearing is required when the applicant has failed to present clear and convincing evidence to rebut a state court’s factual findings); Campbell v. Vaughn, 209 F. 3d 280, 290 (CA3 2000) (same). This principle accords with AEDPA’s acknowledged purpose of “reduc[ing] delays in the execution of state and federal criminal sentences.” Woodford v. Garceau, 538 U. S. 202, 206 (2003) (citing Williams v. Taylor, supra, at 386 (opinion of Stevens, J.) (“Congress wished to curb delays, to prevent ‘retrials’ on federal habeas, and to give effect to state convictions to the extent possible under law”)). If district courts were required to allow federal habeas applicants to develop even the most insubstantial factual allegations in evidentiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts. With these standards in mind, we turn to the facts of this case. III For several reasons, the Court of Appeals believed that Landrigan might be entitled to federal habeas relief and that the District Court, therefore, abused its discretion by denying Landrigan an evidentiary hearing. To the contrary, the District Court was well within its discretion to determine that, even with the benefit of an evidentiary hearing, Landrigan could not develop a factual record that would entitle him to habeas relief. A The Court of Appeals first addressed the State’s contention that Landrigan instructed his counsel not to offer any mitigating evidence. If Landrigan issued such an instruction, counsel’s failure to investigate further could not have been prejudicial under Strickland. The Court of Appeals rejected the findings of “the Arizona Supreme Court (on direct appeal) and the Arizona Superior Court (on habeas review)” that Landrigan instructed his counsel not to introduce any mitigating evidence. 441 F. 3d, at 646. According to the Ninth Circuit, those findings took Landrigan’s colloquy with the sentencing court out of context in a manner that “amounts to an ‘unreasonable determination of the facts.’ ” Id., at 647 (quoting 28 U. S. C. §2254(d)(2)). Upon review of record material and the transcripts from the state courts, we disagree. As a threshold matter, the language of the colloquy plainly indicates that Landrigan informed his counsel not to present any mitigating evidence. When the Arizona trial judge asked Landrigan if he had instructed his lawyer not to present mitigating evidence, Landrigan responded affirmatively. Likewise, when asked if there was any relevant mitigating evidence, Landrigan answered, “Not as far as I’m concerned.” App. to Pet. for Cert. D–4. These statements establish that the Arizona postconviction court’s determination of the facts was reasonable. And it is worth noting, again, that the judge presiding on postconviction review was ideally situated to make this assessment because she is the same judge that sentenced Landrigan and discussed these issues with him. Notwithstanding the plainness of these statements, the Court of Appeals concluded that they referred to only the specific testimony that counsel planned to offer—that of Landrigan’s ex-wife and birth mother. The Court of Appeals further concluded that Landrigan, due to counsel’s failure to investigate, could not have known about the mitigating evidence he now wants to explore. The record conclusively dispels that interpretation. First, Landrigan’s birth mother would have offered testimony that overlaps with the evidence Landrigan now wants to present. For example, Landrigan wants to present evidence from his biological father that would “confirm [his biological mother’s] alcohol and drug use during her pregnancy.” Id., at E–2. But the record shows that counsel planned to call Landrigan’s birth mother to testify about her “drug us[e] during her pregnancy,” id., at D–10, and the possible effects of such drug use. Second, Landrigan interrupted repeatedly when counsel tried to proffer anything that could have been considered mitigating. He even refused to allow his attorney to proffer that he had worked a regular job at one point. Id., at D–6, D–7. This behavior confirms what is plain from the transcript of the colloquy: that Landrigan would have undermined the presentation of any mitigating evidence that his attorney might have uncovered. On the record before us, the Arizona court’s determination that Landrigan refused to allow the presentation of any mitigating evidence was a reasonable determination of the facts. In this regard, we agree with the initial Court of Appeals panel that reviewed this case: “In the constellation of refusals to have mitigating evidence presented . . . this case is surely a bright star. No other case could illuminate the state of the client’s mind and the nature of counsel’s dilemma quite as brightly as this one. No flashes of insight could be more fulgurous than those which this record supplies.” Landrigan v. Stewart, 272 F. 3d 1221, 1226 (CA9 2001). Because the Arizona postconviction court reasonably determined that Landrigan “instructed his attorney not to bring any mitigation to the attention of the [sentencing] court,” App. to Pet. for Cert. F–4, it was not an abuse of discretion for the District Court to conclude that Landrigan could not overcome §2254(d)(2)’s bar to granting federal habeas relief. The District Court was entitled to conclude that regardless of what information counsel might have uncovered in his investigation, Landrigan would have interrupted and refused to allow his counsel to present any such evidence. Accordingly, the District Court could conclude that because of his established recalcitrance, Landrigan could not demonstrate prejudice under Strickland even if granted an evidentiary hearing. B The Court of Appeals offered two alternative reasons for holding that Landrigan’s inability to make a showing of prejudice under Strickland did not bar any potential habeas relief and, thus, an evidentiary hearing. 1 The Court of Appeals held that, even if Landrigan did not want any mitigating evidence presented, the Arizona courts’ determination that Landrigan’s claims were “ ‘frivolous’ and ‘meritless’ was an unreasonable application of United States Supreme Court precedent.” 441 F. 3d, at 647 (citing 28 U. S. C. §2254(d)(1)). This holding was founded on the belief, derived from Wiggins v. Smith, 539 U. S. 510 (2003), that “Landrigan’s apparently last-minute decision cannot excuse his counsel’s failure to conduct an adequate investigation prior to the sentencing.” 441 F. 3d, at 647. Neither Wiggins nor Strickland addresses a situation in which a client interferes with counsel’s efforts to present mitigating evidence to a sentencing court. Wiggins, supra, at 523 (“[W]e focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable” (emphasis added and deleted)). Indeed, we have never addressed a situation like this. In Rompilla v. Beard, 545 U. S. 374, 381 (2005), on which the Court of Appeals also relied, the defendant refused to assist in the development of a mitigation case, but did not inform the court that he did not want mitigating evidence presented. In short, at the time of the Arizona postconviction court’s decision, it was not objectively unreasonable for that court to conclude that a defendant who refused to allow the presentation of any mitigating evidence could not establish Strickland prejudice based on his counsel’s failure to investigate further possible mitigating evidence. 2 The Court of Appeals also stated that the record does not indicate that Landrigan’s decision not to present mitigating evidence was “informed and knowing,” 441 F. 3d, at 647, and that “[t]he trial court’s dialogue with Landrigan tells us little about his understanding of the consequences of his decision.” Ibid. We have never imposed an “informed and knowing” requirement upon a defendant’s decision not to introduce evidence. Cf., e.g., Iowa v. Tovar, 541 U. S. 77, 88 (2004) (explaining that waiver of the right to counsel must be knowing and intelligent). Even assuming, however, that an “informed and knowing” requirement exists in this case, Landrigan cannot benefit from it, for three reasons. First, Landrigan never presented this claim to the Arizona courts.[Footnote 3] Rather, he argued that he would have complied had other evidence been offered. Thus, Landrigan failed to develop this claim properly before the Arizona courts, and §2254(e)(2) therefore barred the District Court from granting an evidentiary hearing on that basis. Second, in Landrigan’s presence, his counsel told the sentencing court that he had carefully explained to Landrigan the importance of mitigating evidence, “especially concerning the fact that the State is seeking the death penalty.” App. to Pet. for Cert. D–3. Counsel also told the court that he had explained to Landrigan that as counsel, he had a duty to disclose “any and all mitigating factors … to th[e] [c]ourt for consideration regarding the sentencing.” Ibid. In light of Landrigan’s demonstrated propensity for interjecting himself into the proceedings, it is doubtful that Landrigan would have sat idly by while his counsel lied about having previously discussed these issues with him. And as Landrigan’s counsel conceded at oral argument before this Court, we have never required a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence. Tr. of Oral Arg. 26. Third, the Court of Appeals overlooked Landrigan’s final statement to the sentencing court: “I think if you want to give me the death penalty, just bring it right on. I’m ready for it.” App. to Pet. for Cert. D–16. It is apparent from this statement that Landrigan clearly understood the consequences of telling the judge that, “as far as [he was] concerned,” there were no mitigating circumstances of which she should be aware. Id., at D–4. IV Finally, the Court of Appeals erred in rejecting the District Court’s finding that the poor quality of Landrigan’s alleged mitigating evidence prevented him from making “a colorable claim” of prejudice. App. to Pet. for Cert. C–46. As summarized by the Court of Appeals, Landrigan wanted to introduce as mitigation evidence: “[that] he was exposed to alcohol and drugs in utero, which may have resulted in cognitive and behavioral deficiencies consistent with fetal alcohol syndrome. He was abandoned by his birth mother and suffered abandonment and attachment issues, as well as other behavioral problems throughout his childhood. His adoptive mother was also an alcoholic, and Landrigan’s own alcohol and substance abuse began at an early age. Based on his biological family’s history of violence, Landrigan claims he may also have been genetically predisposed to violence.” 441 F. 3d, at 649. As explained above, all but the last sentence refer to information that Landrigan’s birth mother and ex-wife could have offered if Landrigan had allowed them to testify. Indeed, the state postconviction court had much of this evidence before it by way of counsel’s proffer. App. to Pet. for Cert. D–21. The District Court could reasonably conclude that any additional evidence would have made no difference in the sentencing. In sum, the District Court did not abuse its discretion in finding that Landrigan could not establish prejudice based on his counsel’s failure to present the evidence he now wishes to offer. Landrigan’s mitigation evidence was weak, and the postconviction court was well acquainted with Landrigan’s exceedingly violent past and had seen first hand his belligerent behavior. Again, it is difficult to improve upon the initial Court of Appeals panel’s conclusion: “The prospect was chilling; before he was 30 years of age, Landrigan had murdered one man, repeatedly stabbed another one, escaped from prison, and within two months murdered still another man. As the Arizona Supreme Court so aptly put it when dealing with one of Landrigan’s other claims, ‘[i]n his comments [to the sentencing judge], defendant not only failed to show remorse or offer mitigating evidence, but he flaunted his menacing behavior.’ On this record, assuring the court that genetics made him the way he is could not have been very helpful. There was no prejudice.” 272 F. 3d, at 1229 (citations and footnote omitted). V The Court of Appeals erred in holding that the District Court abused its discretion in declining to grant Landrigan an evidentiary hearing. Even assuming the truth of all the facts Landrigan sought to prove at the evidentiary hearing, he still could not be granted federal habeas relief because the state courts’ factual determination that Landrigan would not have allowed counsel to present any mitigating evidence at sentencing is not an unreasonable determination of the facts under §2254(d)(2) and the mitigating evidence he seeks to introduce would not have changed the result. In such circumstances, a District Court has discretion to deny an evidentiary hearing. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Although not at issue here, AEDPA generally prohibits federal habeas courts from granting evidentiary hearings when applicants have failed to develop the factual bases for their claims in state courts. 28 U. S. C. §2254(e)(2). Footnote 2 Indeed, the Court of Appeals below, recognizing this point, applied §2254(d)(2) to reject certain of the Arizona court’s factual findings that established a hearing would be futile. Footnote 3 Landrigan made this argument for the first time in a motion for rehearing from the denial of his postconviction petition. Under Arizona law, a defendant cannot raise new claims in a motion for rehearing. State v. Byers, 126 Ariz. 139, 142, 613 P. 2d 299, 302 (App. 1980), overruled on other grounds, State v. Pope, 130 Ariz. 253, 635 P. 2d 846 (1981) (en banc).
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550.US.372
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Deputy Timothy Scott, petitioner here, terminated a high-speed pursuit of respondent’s car by applying his push bumper to the rear of the vehicle, causing it to leave the road and crash. Respondent was rendered quadriplegic. He filed suit under 42 U. S. C. §1983 alleging, inter alia, the use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. The District Court denied Scott’s summary judgment motion, which was based on qualified immunity. The Eleventh Circuit affirmed on interlocutory appeal, concluding, inter alia, that Scott’s actions could constitute “deadly force” under Tennessee v. Garner, 471 U. S. 1; that the use of such force in this context would violate respondent’s constitutional right to be free from excessive force during a seizure; and that a reasonable jury could so find. Held: Because the car chase respondent initiated posed a substantial and immediate risk of serious physical injury to others, Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. Pp. 3–13. (a) Qualified immunity requires resolution of a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U. S. 194, 201. Pp. 3–4. (b) The record in this case includes a videotape capturing the events in question. Where, as here, the record blatantly contradicts the plaintiff’s version of events so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a summary judgment motion. Pp. 5–8. (c) Viewing the facts in the light depicted by the videotape, it is clear that Deputy Scott did not violate the Fourth Amendment. Pp. 8–13. (i) Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force.” The Court there simply applied the Fourth Amendment’s “reasonableness” test to the use of a particular type of force in a particular situation. That case has scant applicability to this one, which has vastly different facts. Whether or not Scott’s actions constituted “deadly force,” what matters is whether those actions were reasonable. Pp. 8–10. (ii) In determining a seizure’s reasonableness, the Court balances the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests allegedly justifying the intrusion. United States v. Place, 462 U. S. 696, 703. In weighing the high likelihood of serious injury or death to respondent that Scott’s actions posed against the actual and imminent threat that respondent posed to the lives of others, the Court takes account of the number of lives at risk and the relative culpability of the parties involved. Respondent intentionally placed himself and the public in danger by unlawfully engaging in reckless, high-speed flight; those who might have been harmed had Scott not forced respondent off the road were entirely innocent. The Court concludes that it was reasonable for Scott to take the action he did. It rejects respondent’s argument that safety could have been assured if the police simply ceased their pursuit. The Court rules that a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. Pp. 10–13. 433 F. 3d 807, reversed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Ginsburg, J., and Breyer, J., filed concurring opinions. Stevens, J., filed a dissenting opinion.
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We consider whether a law enforcement official can, consistent with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-endangering flight by ramming the motorist’s car from behind. Put another way: Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders? I In March 2001, a Georgia county deputy clocked respondent’s vehicle traveling at 73 miles per hour on a road with a 55-mile-per-hour speed limit. The deputy activated his blue flashing lights indicating that respondent should pull over. Instead, respondent sped away, initiating a chase down what is in most portions a two-lane road, at speeds exceeding 85 miles per hour. The deputy radioed his dispatch to report that he was pursuing a fleeing vehicle, and broadcast its license plate number. Petitioner, Deputy Timothy Scott, heard the radio communication and joined the pursuit along with other officers. In the midst of the chase, respondent pulled into the parking lot of a shopping center and was nearly boxed in by the various police vehicles. Respondent evaded the trap by making a sharp turn, colliding with Scott’s police car, exiting the parking lot, and speeding off once again down a two-lane highway. Following respondent’s shopping center maneuvering, which resulted in slight damage to Scott’s police car, Scott took over as the lead pursuit vehicle. Six minutes and nearly 10 miles after the chase had begun, Scott decided to attempt to terminate the episode by employing a “Precision Intervention Technique (‘PIT’) maneuver, which causes the fleeing vehicle to spin to a stop.” Brief for Petitioner 4. Having radioed his supervisor for permission, Scott was told to “ ‘[g]o ahead and take him out.’ ” Harris v. Coweta County, 433 F. 3d 807, 811 (CA11 2005). Instead, Scott applied his push bumper to the rear of respondent’s vehicle.[Footnote 1] As a result, respondent lost control of his vehicle, which left the roadway, ran down an embankment, overturned, and crashed. Respondent was badly injured and was rendered a quadriplegic. Respondent filed suit against Deputy Scott and others under Rev. Stat. §1979, 42 U. S. C. §1983, alleging, inter alia, a violation of his federal constitutional rights, viz. use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. In response, Scott filed a motion for summary judgment based on an assertion of qualified immunity. The District Court denied the motion, finding that “there are material issues of fact on which the issue of qualified immunity turns which present sufficient disagreement to require submission to a jury.” Harris v. Coweta County, No. 3:01–CV–148–WBH (ND Ga., Sept. 23, 2003), App. to Pet. for Cert. 41a–42a. On interlocutory appeal,[Footnote 2] the United States Court of Appeals for the Eleventh Circuit affirmed the District Court’s decision to allow respondent’s Fourth Amendment claim against Scott to proceed to trial.[Footnote 3] Taking respondent’s view of the facts as given, the Court of Appeals concluded that Scott’s actions could constitute “deadly force” under Tennessee v. Garner, 471 U. S. 1 (1985), and that the use of such force in this context “would violate [respondent’s] constitutional right to be free from excessive force during a seizure. Accordingly, a reasonable jury could find that Scott violated [respondent’s] Fourth Amendment rights.” 433 F. 3d, at 816. The Court of Appeals further concluded that “the law as it existed [at the time of the incident], was sufficiently clear to give reasonable law enforcement officers ‘fair notice’ that ramming a vehicle under these circumstances was unlawful.” Id., at 817. The Court of Appeals thus concluded that Scott was not entitled to qualified immunity. We granted certiorari, 549 U. S. __ (2006), and now reverse. II In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry.” Saucier v. Katz, 533 U. S. 194, 201 (2001). If, and only if, the court finds a violation of a constitutional right, “the next, sequential step is to ask whether the right was clearly established … in light of the specific context of the case.” Ibid. Although this ordering contradicts “[o]ur policy of avoiding unnecessary adjudication of constitutional issues,” United States v. Treasury Employees, 513 U. S. 454, 478 (1995) (citing Ashwander v. TVA, 297 U. S. 288, 346–347 (1936) (Brandeis, J., concurring)), we have said that such a departure from practice is “necessary to set forth principles which will become the basis for a [future] holding that a right is clearly established.” Saucier, supra, at 201.[Footnote 4] We therefore turn to the threshold inquiry: whether Deputy Scott’s actions violated the Fourth Amendment. III A The first step in assessing the constitutionality of Scott’s actions is to determine the relevant facts. As this case was decided on summary judgment, there have not yet been factual findings by a judge or jury, and respondent’s version of events (unsurprisingly) differs substantially from Scott’s version. When things are in such a posture, courts are required to view the facts and draw reasonable inferences “in the light most favorable to the party opposing the [summary judgment] motion.” United States v. Diebold, Inc., 369 U. S. 654, 655 (1962) (per curiam); Saucier, supra, at 201. In qualified immunity cases, this usually means adopting (as the Court of Appeals did here) the plaintiff’s version of the facts. There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. There are no allegations or indications that this videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened. The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals.[Footnote 5] For example, the Court of Appeals adopted respondent’s assertions that, during the chase, “there was little, if any, actual threat to pedestrians or other motorists, as the roads were mostly empty and [respondent] remained in control of his vehicle.” 433 F. 3d, at 815. Indeed, reading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test: “[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.” Id., at 815–816 (citations omitted). The videotape tells quite a different story. There we see respondent’s vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.[Footnote 6] We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up. Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.[Footnote 7] At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts… . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 586–587 (1986) (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247–248 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape. B Judging the matter on that basis, we think it is quite clear that Deputy Scott did not violate the Fourth Amendment. Scott does not contest that his decision to terminate the car chase by ramming his bumper into respondent’s vehicle constituted a “seizure.” “[A] Fourth Amendment seizure [occurs] … when there is a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U. S. 593, 596–597 (1989) (emphasis deleted). See also id., at 597 (“If … the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure”). It is also conceded, by both sides, that a claim of “excessive force in the course of making [a] …‘seizure’ of [the] person … [is] properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U. S. 386, 388 (1989). The question we need to answer is whether Scott’s actions were objectively reasonable.[Footnote 8] 1 Respondent urges us to analyze this case as we analyzed Garner, 471 U. S. 1. See Brief for Respondent 16–29. We must first decide, he says, whether the actions Scott took constituted “deadly force.” (He defines “deadly force” as “any use of force which creates a substantial likelihood of causing death or serious bodily injury,” id., at 19.) If so, respondent claims that Garner prescribes certain preconditions that must be met before Scott’s actions can survive Fourth Amendment scrutiny: (1) The suspect must have posed an immediate threat of serious physical harm to the officer or others; (2) deadly force must have been necessary to prevent escape;[Footnote 9] and (3) where feasible, the officer must have given the suspect some warning. See Brief for Respondent 17–18 (citing Garner, supra, at 9–12). Since these Garner preconditions for using deadly force were not met in this case, Scott’s actions were per se unreasonable. Respondent’s argument falters at its first step; Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force.” Garner was simply an application of the Fourth Amendment’s “reasonableness” test, Graham, supra, at 388, to the use of a particular type of force in a particular situation. Garner held that it was unreasonable to kill a “young, slight, and unarmed” burglary suspect, 471 U. S., at 21, by shooting him “in the back of the head” while he was running away on foot, id., at 4, and when the officer “could not reasonably have believed that [the suspect] … posed any threat,” and “never attempted to justify his actions on any basis other than the need to prevent an escape,” id., at 21. Whatever Garner said about the factors that might have justified shooting the suspect in that case, such “preconditions” have scant applicability to this case, which has vastly different facts. “Garner had nothing to do with one car striking another or even with car chases in general … . A police car’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun so as to hit a person.” Adams v. St. Lucie County Sheriff’s Dept., 962 F. 2d 1563, 1577 (CA11 1992) (Edmondson, J., dissenting), adopted by 998 F. 2d 923 (CA11 1993) (en banc) (per curiam). Nor is the threat posed by the flight on foot of an unarmed suspect even remotely comparable to the extreme danger to human life posed by respondent in this case. Although respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of “reasonableness.” Whether or not Scott’s actions constituted application of “deadly force,” all that matters is whether Scott’s actions were reasonable. 2 In determining the reasonableness of the manner in which a seizure is effected, “[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U. S. 696, 703 (1983). Scott defends his actions by pointing to the paramount governmental interest in ensuring public safety, and respondent nowhere suggests this was not the purpose motivating Scott’s behavior. Thus, in judging whether Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s actions posed to respondent in light of the threat to the public that Scott was trying to eliminate. Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase. See Part III–A, supra. It is equally clear that Scott’s actions posed a high likelihood of serious injury or death to respondent—though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head, see Garner, supra, at 4, or pulling alongside a fleeing motorist’s car and shooting the motorist, cf. Vaughan v. Cox, 343 F. 3d 1323, 1326–1327 (CA11 2003). So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability. It was respondent, after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing respondent for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did.[Footnote 10] But wait, says respondent: Couldn’t the innocent public equally have been protected, and the tragic accident entirely avoided, if the police had simply ceased their pursuit? We think the police need not have taken that chance and hoped for the best. Whereas Scott’s action—ramming respondent off the road—was certain to eliminate the risk that respondent posed to the public, ceasing pursuit was not. First of all, there would have been no way to convey convincingly to respondent that the chase was off, and that he was free to go. Had respondent looked in his rear-view mirror and seen the police cars deactivate their flashing lights and turn around, he would have had no idea whether they were truly letting him get away, or simply devising a new strategy for capture. Perhaps the police knew a shortcut he didn’t know, and would reappear down the road to intercept him; or perhaps they were setting up a roadblock in his path. Cf. Brower, 489 U. S., at 594. Given such uncertainty, respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.[Footnote 11] Second, we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. The Constitution assuredly does not impose this invitation to impunity-earned-by-recklessness. Instead, we lay down a more sensible rule: A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. * * * The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. The Court of Appeals’ decision to the contrary is reversed. It is so ordered. Footnote 1 Scott says he decided not to employ the PIT maneuver because he was “concerned that the vehicles were moving too quickly to safely execute the maneuver.” Brief for Petitioner 4. Respondent agrees that the PIT maneuver could not have been safely employed. See Brief for Respondent 9. It is irrelevant to our analysis whether Scott had permission to take the precise actions he took. Footnote 2 Qualified immunity is “an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U. S. 511, 526 (1985). Thus, we have held that an order denying qualified immunity is immediately appealable even though it is interlocutory; otherwise, it would be “effectively unreviewable.” Id., at 527. Further, “we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curiam). Footnote 3 None of the other claims respondent brought against Scott or any other party are before this Court. Footnote 4 Prior to this Court’s announcement of Saucier’s “rigid ‘order of battle,’ ” Brosseau v. Haugen, 543 U. S. 194, 201–202 (2004) (Breyer, J., concurring), we had described this order of inquiry as the “better approach,” County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998), though not one that was required in all cases. See id., at 858–859 (Breyer, J., concurring); id., at 859 (Stevens, J., concurring in judgment). There has been doubt expressed regarding the wisdom of Saucier’s decision to make the threshold inquiry mandatory, especially in cases where the constitutional question is relatively difficult and the qualified immunity question relatively straightforward. See, e.g., Brosseau, supra, at 201 (Breyer, J., joined by Scalia and Ginsburg, JJ., concurring); Bunting v. Mellen, 541 U. S. 1019 (2004) (Stevens, J., joined by Ginsburg and Breyer, JJ., respecting denial of certiorari); id., at 1025 (Scalia, J., joined by Rehnquist, C.J., dissenting). See also Lyons v. Xenia, 417 F. 3d 565, 580–584 (CA6 2005) (Sutton, J., concurring). We need not address the wisdom of Saucier in this case, however, because the constitutional question with which we are presented is, as discussed in Part III–B, infra, easily decided. Deciding that question first is thus the “better approach,” Lewis, supra, at 841, n. 5, regardless of whether it is required. Footnote 5 Justice Stevens suggests that our reaction to the videotape is somehow idiosyncratic, and seems to believe we are misrepresenting its contents. See post, at 4 (dissenting opinion) (“In sum, the factual statements by the Court of Appeals quoted by the Court … were entirely accurate”). We are happy to allow the videotape to speak for itself. See Record 36, Exh. A, available at http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb and in Clerk of Court’s case file. Footnote 6 Justice Stevens hypothesizes that these cars “had already pulled to the side of the road or were driving along the shoulder because they heard the police sirens or saw the flashing lights,” so that “[a] jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance.” Post, at 3. It is not our experience that ambulances and fire engines careen down two-lane roads at 85-plus miles per hour, with an unmarked scout car out in front of them. The risk they pose to the public is vastly less than what respondent created here. But even if that were not so, it would in no way lead to the conclusion that it was unreasonable to eliminate the threat to life that respondent posed. Society accepts the risk of speeding ambulances and fire engines in order to save life and property; it need not (and assuredly does not) accept a similar risk posed by a reckless motorist fleeing the police. Footnote 7 This is not to say that each and every factual statement made by the Court of Appeals is inaccurate. For example, the videotape validates the court’s statement that when Scott rammed respondent’s vehicle it was not threatening any other vehicles or pedestrians. (Undoubtedly Scott waited for the road to be clear before executing his maneuver.) Footnote 8 Justice Stevens incorrectly declares this to be “a question of fact best reserved for a jury,” and complains we are “usurp[ing] the jury’s factfinding function.” Post, at 7. At the summary judgment stage, however, once we have determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record, see Part III–A, supra, the reasonableness of Scott’s actions—or, in Justice Stevens’ parlance, “[w]hether [respondent’s] actions have risen to a level warranting deadly force,” post, at 7—is a pure question of law. Footnote 9 Respondent, like the Court of Appeals, defines this second precondition as “ ‘necessary to prevent escape,’ ” Brief for Respondent 17; Harris v. Coweta County, 433 F. 3d 807, 813 (CA11 2005), quoting Garner, 471 U. S., at 11. But that quote from Garner is taken out of context. The necessity described in Garner was, in fact, the need to prevent “serious physical harm, either to the officer or to others.” Ibid. By way of example only, Garner hypothesized that deadly force may be used “if necessary to prevent escape” when the suspect is known to have “committed a crime involving the infliction or threatened infliction of serious physical harm,” ibid., so that his mere being at large poses an inherent danger to society. Respondent did not pose that type of inherent threat to society, since (prior to the car chase) he had committed only a minor traffic offense and, as far as the police were aware, had no prior criminal record. But in this case, unlike in Garner, it was respondent’s flight itself (by means of a speeding automobile) that posed the threat of “serious physical harm … to others.” Ibid. Footnote 10 The Court of Appeals cites Brower v. County of Inyo, 489 U. S. 593, 595 (1989), for its refusal to “countenance the argument that by continuing to flee, a suspect absolves a pursuing police officer of any possible liability for all ensuing actions during the chase,” 433 F. 3d, at 816. The only question in Brower was whether a police roadblock constituted a seizure under the Fourth Amendment. In deciding that question, the relative culpability of the parties is, of course, irrelevant; a seizure occurs whenever the police are “responsib[le] for the termination of [a person’s] movement,” 433 F. 3d, at 816, regardless of the reason for the termination. Culpability is relevant, however, to the reasonableness of the seizure—to whether preventing possible harm to the innocent justifies exposing to possible harm the person threatening them. Footnote 11 Contrary to Justice Stevens’ assertions, we do not “assum[e] that dangers caused by flight from a police pursuit will continue after the pursuit ends,” post, at 6, nor do we make any “factual assumptions,” post, at 5, with respect to what would have happened if the police had gone home. We simply point out the uncertainties regarding what would have happened, in response to respondent’s factual assumption that the high-speed flight would have ended.
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549.US.422
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A contract between petitioner (Sinochem), a Chinese state-owned importer, and a domestic corporation not a party here (Triorient) provided that Sinochem would purchase steel coils and that Triorient would be paid under a letter of credit by producing a valid bill of lading certifying that the coils had been loaded for shipment to China on or before April 30, 2003. Triorient subchartered a vessel owned by respondent (Malaysia International), a Malaysian company, to transport the coils, and hired a stevedoring company to load the coils in Philadelphia. A bill of lading, dated April 30, 2003, triggered payment under the letter of credit. Sinochem petitioned a Chinese admiralty court for preservation of a maritime claim against Malaysia International and arrest of the vessel, alleging that the Malaysian company had falsely backdated the bill of lading. The Chinese court ordered the ship arrested, and Sinochem timely filed a complaint in that tribunal. The Chinese admiralty court rejected Malaysia International’s jurisdictional objections to Sinochem’s complaint and that ruling was affirmed on appeal. Shortly after the Chinese admiralty court ordered the vessel’s arrest, Malaysia International filed this action in a United States District Court, asserting that Sinochem’s preservation petition to the Chinese court contained misrepresentations, and seeking compensation for losses sustained due to the ship’s arrest. Sinochem moved to dismiss on several grounds, including lack of subject-matter and personal jurisdiction and the doctrine of forum non conveniens, under which a federal district court may dismiss an action if a court abroad is the more appropriate and convenient forum for adjudicating the controversy. The District Court determined it had subject-matter jurisdiction over the cause, concluded it lacked personal jurisdiction over Sinochem under Pennsylvania law, conjectured that limited discovery might reveal that it had personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), but dismissed on forum non conveniens grounds, finding that the case could be adjudicated adequately and more conveniently in the Chinese courts. Agreeing that there was subject-matter jurisdiction and that personal jurisdiction could not be resolved sans discovery, the Third Circuit panel held that the District Court could not dismiss the case under the forum non conveniens doctrine unless and until it determined definitively that it had both subject-matter and personal jurisdiction. Held: A district court has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is the more suitable arbiter of the merits of the case. Pp. 5–12. (a) A federal court has discretion to dismiss on forum non conveniens grounds “when an alternative forum has jurisdiction to hear [the] case, and … trial in the chosen forum would establish … oppressiveness and vexation to a defendant … out of all proportion to plaintiff’s convenience, or … the chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.” American Dredging Co. v. Miller, 510 U. S. 443, 447–448. Such a dismissal reflects a court’s assessment of a “range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality.” Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 723. A defendant invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum. When the plaintiff’s choice is not its home forum, however, the presumption in the plaintiff’s favor “applies with less force,” for the assumption that the chosen forum is appropriate is then “less reasonable.” Piper Aircraft Co. v. Reyno, 454 U. S. 235, 255–256. Pp. 5–6. (b) Although a federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the cause (subject-matter jurisdiction) and the parties (personal jurisdiction), see Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 93–102, there is no mandatory sequencing of nonmerits issues, see Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 584. A court has leeway “to choose among threshold grounds for denying audience to a case on the merits,” Id., at 585. Pp. 7–8. (c) Forum non conveniens is a nonmerits ground for dismissal. See American Dredging, 510 U. S., at 454; Chick Kam Choo v. Exxon Corp., 486 U. S. 140, 148. A district court therefore may dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant. Forum non conveniens, like other threshold issues, may involve a brush with “factual and legal issues of the underlying dispute.” Van Cauwenberghe v. Biard, 486 U. S. 517, 529. But the critical point, rendering a forum non conveniens determination a nonmerits issue that can be determined before taking up jurisdictional inquiries is this: Resolving a forum non conveniens motion does not entail any assumption by the court of substantive law-declaring power. Statements in Gulf Oil Corp. v. Gilbert, 330 U. S. 501, that “forum non conveniens can never apply if there is absence of jurisdiction,” id., at 504, and that “[i]n all cases in which … forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process,” id., at 506–507, account in large part for the Third Circuit’s conclusion. Those statements draw their meaning from the context in which they were embedded. Gulf Oil answered in the affirmative the question whether a court that had jurisdiction over the cause and the parties and was a proper venue could nevertheless dismiss the action under the forum non conveniens doctrine. Gulf Oil did not address the issue decided here: whether a federal court can presume, rather than dispositively decide, its jurisdiction before dismissing under the doctrine of forum non conveniens. The quoted statements, confined to the setting in which they were made, are no hindrance to the decision reached today. The Third Circuit’s further concern—that a court failing first to establish its jurisdiction could not condition a forum non conveniens dismissal on the defendant’s waiver of any statute of limitations defense or objection to the foreign forum’s jurisdiction, and thus could not shield the plaintiff against a foreign tribunal’s refusal to entertain the suit—is not implicated on these facts. Malaysia International faces no genuine risk that the more convenient forum will not take up the case. This Court therefore need not decide whether a court conditioning a forum non conveniens dismissal on the waiver of jurisdictional or limitations defenses in the foreign forum must first determine its own authority to adjudicate the case. Pp. 8–11. (d) This is a textbook case for immediate forum non conveniens dismissal. The District Court’s subject-matter jurisdiction presented an issue of first impression in the Third Circuit, and was considered at some length by the courts below. Discovery concerning personal jurisdiction would have burdened Sinochem with expense and delay to scant purpose: The District Court inevitably would dismiss the case without reaching the merits, given its well-considered forum non conveniens appraisal. Judicial economy is disserved by continuing litigation in the District Court given the proceedings long launched in China. And the gravamen of Malaysia International’s complaint—misrepresentations to the Chinese admiralty court in securing the vessel’s arrest in China—is an issue best left for determination by the Chinese courts. If, as in the mine run of cases, a court can readily determine that it lacks jurisdiction over the cause or the defendant, the proper course would be to dismiss on that ground. But where subject-matter or personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course. Pp. 11–12. 436 F. 3d 349, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.
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This case concerns the doctrine of forum non conveniens, under which a federal district court may dismiss an action on the ground that a court abroad is the more appropriate and convenient forum for adjudicating the controversy. We granted review to decide a question that has divided the Courts of Appeals: “Whether a district court must first conclusively establish [its own] jurisdiction before dismissing a suit on the ground of forum non conveniens?” Pet. for Cert. i. We hold that a district court has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is plainly the more suitable arbiter of the merits of the case. I The underlying controversy concerns alleged misrepresentations by a Chinese corporation to a Chinese admiralty court resulting in the arrest of a Malaysian vessel in China. In 2003, petitioner Sinochem International Company Ltd. (Sinochem), a Chinese state-owned importer, contracted with Triorient Trading, Inc. (Triorient), a domestic corporation that is not a party to this suit, to purchase steel coils. Pursuant to the agreement, Triorient would receive payment under a letter of credit by producing a valid bill of lading certifying that the coils had been loaded for shipment to China on or before April 30, 2003. Memorandum and Order of Feb. 27, 2004, No. Civ. A. 03–3771 (ED Pa.), App. to Pet. for Cert. 48a–49a (hereinafter Feb. 27 Memo & Order). Triorient subchartered a vessel owned by respondent Malaysia International Shipping Corporation (Malaysia International), a Malaysian company, to transport the coils to China. Triorient then hired a stevedoring company to load the steel coils at the Port of Philadelphia. A bill of lading, dated April 30, 2003, triggered payment under the letter of credit. Id., at 49a. On June 8, 2003, Sinochem petitioned the Guangzhou Admiralty Court in China for interim relief, i.e., preservation of a maritime claim against Malaysia International and arrest of the vessel that carried the steel coils to China. In support of its petition, Sinochem alleged that the Malaysian company had falsely backdated the bill of lading. The Chinese tribunal ordered the ship arrested the same day. Id., at 50a; App. in No. 04–1816 (CA3), pp. 56a–57a (Civil Ruling of the Guangzhou Admiralty Court). Thereafter, on July 2, 2003, Sinochem timely filed a complaint against Malaysia International and others in the Guangzhou Admiralty Court. Sinochem’s complaint repeated the allegation that the bill of lading had been falsified resulting in unwarranted payment. Malaysia International contested the jurisdiction of the Chinese tribunal. Feb. 27 Memo & Order, at 50a; App. in No. 04–1816 (CA3), pp. 52a–53a (Civil Complaint in Guangzhou Admiralty Court). The admiralty court rejected Malaysia International’s jurisdictional objection, and that ruling was affirmed on appeal by the Guangdong Higher People’s Court. App. 16–23. On June 23, 2003, shortly after the Chinese court ordered the vessel’s arrest, Malaysia International filed the instant action against Sinochem in the United States District Court for the Eastern District of Pennsylvania. Malaysia International asserted in its federal court pleading that Sinochem’s preservation petition to the Guangzhou court negligently misrepresented the “vessel’s fitness and suitability to load its cargo.” Feb. 27 Memo & Order, at 50a (internal quotation marks omitted). As relief, Malaysia International sought compensation for the loss it sustained due to the delay caused by the ship’s arrest. Sinochem moved to dismiss the suit on several grounds, including lack of subject-matter jurisdiction, lack of personal jurisdiction, forum non conveniens, and international comity. App. in No. 04–1816 (CA3), pp. 14a–20a, 39a–40a. The District Court first determined that it had subject-matter jurisdiction under 28 U. S. C. §1333(1) (admiralty or maritime jurisdiction). Feb. 27 Memo & Order, at 51a–54a. The court next concluded that it lacked personal jurisdiction over Sinochem under Pennsylvania’s long-arm statute, 42 Pa. Cons. Stat. §5301 et seq. (2002). Nevertheless, the court conjectured, limited discovery might reveal that Sinochem’s national contacts sufficed to establish personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2). Feb. 27 Memo & Order, at 55a–63a. The court did not permit such discovery, however, because it determined that the case could be adjudicated adequately and more conveniently in the Chinese courts. Id., at 63a–69a; Memorandum and Order of Apr. 13, 2004, No. Civ. A. 03–3771 (ED Pa.), App. to Pet. for Cert. 40a–47a (hereinafter Apr. 13 Memo & Order) (denial of Rule 59(e) motion). No significant interests of the United States were involved, the court observed, Feb. 27 Memo & Order, at 65a–67a; Apr. 13 Memo & Order, at 44a–47a, and while the cargo had been loaded in Philadelphia, the nub of the controversy was entirely foreign: The dispute centered on the arrest of a foreign ship in foreign waters pursuant to the order of a foreign court. Feb. 27 Memo & Order, at 67a. Given the proceedings ongoing in China, and the absence of cause “to second-guess the authority of Chinese law or the competence of [Chinese] courts,” the District Court granted the motion to dismiss under the doctrine of forum non conveniens. Id., at 68a. A panel of the Court of Appeals for the Third Circuit agreed there was subject-matter jurisdiction under §1333(1), and that the question of personal jurisdiction could not be resolved sans discovery. Although the court determined that forum non conveniens is a nonmerits ground for dismissal, the majority nevertheless held that the District Court could not dismiss the case under the forum non conveniens doctrine unless and until it determined definitively that it had both subject-matter jurisdiction over the cause and personal jurisdiction over the defendant. 436 F. 3d 349 (CA3 2006). Judge Stapleton dissented. Requiring a district court to conduct discovery on a jurisdictional question when it “rightly regards [the forum] as inappropriate,” he maintained, “subverts a primary purpose of” the forum non conveniens doctrine: “protect[ing] a defendant from … substantial and unnecessary effort and expense.” Id., at 368. The “court makes no assumption of law declaring power,” Judge Stapleton observed, “when it decides not to exercise whatever jurisdiction it may have.” Id., at 370 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 584 (1999), in turn quoting In re Papandreou, 139 F. 3d 247, 255 (CADC 1998)). We granted certiorari, 548 U. S. ___ (2006), to resolve a conflict among the Circuits on whether forum non conveniens can be decided prior to matters of jurisdiction. Compare 436 F. 3d, at 361–364 (case below); Dominguez-Cota v. Cooper Tire & Rubber Co., 396 F. 3d 650, 652–654 (CA5 2005) (per curiam) (jurisdictional issues must be resolved in advance of a forum non conveniens ruling), with Intec USA, LLC v. Engle, 467 F. 3d 1038, 1041 (CA7 2006); In re Arbitration Between Monegasque de Reassurances S. A. M. (Monde Re) v. NAK Naftogaz of Ukraine, 311 F. 3d 488, 497–498 (CA2 2002); In re Papandreou, 139 F. 3d, at 255–256 (forum non conveniens may be resolved ahead of jurisdictional issues). Satisfied that forum non conveniens may justify dismissal of an action though jurisdictional issues remain unresolved, we reverse the Third Circuit’s judgment. II A federal court has discretion to dismiss a case on the ground of forum non conveniens “when an alternative forum has jurisdiction to hear [the] case, and . . . trial in the chosen forum would establish … oppressiveness and vexation to a defendant … out of all proportion to plaintiff’s convenience, or . . . the chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.” American Dredging Co. v. Miller, 510 U. S. 443, 447–448 (1994) (quoting Piper Aircraft Co. v. Reyno, 454 U. S. 235, 241 (1981), in turn quoting Koster v. (American) Lumbermens Mut. Casualty Co., 330 U. S. 518, 524 (1947)). Dismissal for forum non conveniens reflects a court’s assessment of a “range of considerations, most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality.” Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 723 (1996) (citations omitted). We have characterized forum non conveniens as, essentially, “a supervening venue provision, permitting displacement of the ordinary rules of venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be declined.” American Dredging, 510 U. S., at 453; cf. In re Papandreou, 139 F. 3d, at 255 (forum non conveniens “involves a deliberate abstention from the exercise of jurisdiction”). The common-law doctrine of forum non conveniens “has continuing application [in federal courts] only in cases where the alternative forum is abroad,” American Dredging, 510 U. S., at 449, n. 2, and perhaps in rare instances where a state or territorial court serves litigational convenience best. See 14D C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3828, pp. 620–623, and nn. 9–10 (3d ed. 2007). For the federal-court system, Congress has codified the doctrine and has provided for transfer, rather than dismissal, when a sister federal court is the more convenient place for trial of the action. See 28 U. S. C. §1404(a) (“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.”); cf. §1406(a) (“The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”); Goldlawr, Inc. v. Heiman, 369 U. S. 463, 466 (1962) (Section 1406(a) “authorize[s] the transfer of [a] cas[e] … whether the court in which it was filed had personal jurisdiction over the defendants or not.”). A defendant invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum. When the plaintiff’s choice is not its home forum, however, the presumption in the plaintiff’s favor “applies with less force,” for the assumption that the chosen forum is appropriate is in such cases “less reasonable.” Piper Aircraft Co., 454 U. S., at 255–256. III Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), clarified that a federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction). See id., at 93–102. “Without jurisdiction the court cannot proceed at all in any cause”; it may not assume jurisdiction for the purpose of deciding the merits of the case. Id., at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1869)). While Steel Co. confirmed that jurisdictional questions ordinarily must precede merits determinations in dispositional order, Ruhrgas held that there is no mandatory “sequencing of jurisdictional issues.” 526 U. S., at 584. In appropriate circumstances, Ruhrgas decided, a court may dismiss for lack of personal jurisdiction without first establishing subject-matter jurisdiction. See id., at 578. Both Steel Co. and Ruhrgas recognized that a federal court has leeway “to choose among threshold grounds for denying audience to a case on the merits.” Ruhrgas, 526 U. S., at 585; Steel Co., 523 U. S., at 100–101, n. 3. Dismissal short of reaching the merits means that the court will not “proceed at all” to an adjudication of the cause. Thus, a district court declining to adjudicate state-law claims on discretionary grounds need not first determine whether those claims fall within its pendent jurisdiction. See Moor v. County of Alameda, 411 U. S. 693, 715–716 (1973). Nor must a federal court decide whether the parties present an Article III case or controversy before abstaining under Younger v. Harris, 401 U. S. 37 (1971). See Ellis v. Dyson, 421 U. S. 426, 433–434 (1975). A dismissal under Totten v. United States, 92 U. S. 105 (1876) (prohibiting suits against the Government based on covert espionage agreements), we recently observed, also “represents the sort of ‘threshold question’ [that] . . . may be resolved before addressing jurisdiction.” Tenet v. Doe, 544 U. S. 1, 7, n. 4 (2005). The principle underlying these decisions was well stated by the Seventh Circuit: “[J]urisdiction is vital only if the court proposes to issue a judgment on the merits.” Intec USA, 467 F. 3d, at 1041. IV A forum non conveniens dismissal “den[ies] audience to a case on the merits,” Ruhrgas, 526 U. S., at 585; it is a determination that the merits should be adjudicated elsewhere. See American Dredging, 510 U. S., at 454; Chick Kam Choo v. Exxon Corp., 486 U. S. 140, 148 (1988). The Third Circuit recognized that forum non conveniens “is a non-merits ground for dismissal.” 436 F. 3d, at 359. Accord In re Papandreou, 139 F. 3d, at 255; Monde Re, 311 F. 3d, at 497–498. A district court therefore may dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant. As the Third Circuit observed, Van Cauwenberghe v. Biard, 486 U. S. 517, 527–530 (1988), does not call for a different conclusion. See 436 F. 3d, at 359–360. Biard presented the question whether a district court’s denial of a motion to dismiss on the ground of forum non conveniens qualifies for immediate appeal under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). Biard, 486 U. S., at 527. The Court held that a refusal to dismiss for forum non conveniens, an interlocutory order, does not fall within the circumscribed collateral order exception to the firm final judgment rule generally governing federal court proceedings. In that context, the Court observed that some factors relevant to forum non conveniens, notably what evidence will bear on the plaintiff’s claim or on defenses to the claim, “will substantially overlap factual and legal issues of the underlying dispute.” Id., at 529. That observation makes eminent sense when the question is whether an issue is so discrete from the merits as to justify departure from the rule that a party may not appeal until the district court has rendered a final judgment disassociating itself from the case. See Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978) (“To come within the ‘small class’ of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.”). Biard’s point, however, does not carry over to the question here at issue. Of course a court may need to identify the claims presented and the evidence relevant to adjudicating those issues to intelligently rule on a forum non conveniens motion. But other threshold issues may similarly involve a brush with “factual and legal issues of the underlying dispute.” Biard, 486 U. S., at 529. For example, in ruling on the nonmerits threshold question of personal jurisdiction, a court may be called upon to determine whether a defendant’s contacts with the forum relate to the claim advanced by the plaintiff. See, e.g., Ruhrgas, 526 U. S., at 581, n. 4 (noting that the District Court’s holding that it lacked personal jurisdiction rested on its conclusion “that Marathon had not shown that Ruhrgas pursued the alleged pattern of fraud and misrepresentation during the Houston meetings”). The critical point here, rendering a forum non conveniens determination a threshold, nonmerits issue in the relevant context, is simply this: Resolving a forum non conveniens motion does not entail any assumption by the court of substantive “law-declaring power.” See id., at 584–585 (quoting In re Papandreou, 139 F. 3d, at 255). Statements in this Court’s opinion in Gulf Oil Corp. v. Gilbert, 330 U. S. 501 (1947), account in large part for the Third Circuit’s conclusion that forum non conveniens can come into play only after a domestic court determines that it has jurisdiction over the cause and the parties and is a proper venue for the action. See 436 F. 3d, at 361–362. The Court said in Gulf Oil that “the doctrine of forum non conveniens can never apply if there is absence of jurisdiction,” 330 U. S., at 504, and that “[i]n all cases in which … forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process,” id., at 506–507. Those statements from Gulf Oil, perhaps less than “felicitously” crafted, see Tr. of Oral Arg. 14, draw their meaning from the context in which they were embedded. The question presented in Gulf Oil was whether a court fully competent to adjudicate the case, i.e., one that plainly had jurisdiction over the cause and the parties and was a proper venue, could nevertheless dismiss the action under the forum non conveniens doctrine. The Court answered that question “yes.” As to the first statement—that “forum non conveniens can never apply if there is absence of jurisdiction”—it is of course true that once a court determines that jurisdiction is lacking, it can proceed no further and must dismiss the case on that account. In that scenario “forum non conveniens can never apply.” The second statement—that forum non conveniens “presupposes at least two forums” with authority to adjudicate the case—was made in response to the Gulf Oil plaintiff’s argument to this effect: Because the federal forum chosen by the plaintiff possessed jurisdiction and venue was proper, the court was obliged to adjudicate the case. See 330 U. S., at 504 (explaining that a court’s statutory empowerment to entertain a suit “does not settle the question whether it must do so”). Notably, in speaking of what the forum non conveniens doctrine “presupposes,” the Court said nothing that would negate a court’s authority to presume, rather than dispositively decide, the propriety of the forum in which the plaintiff filed suit. In sum, Gulf Oil did not present the question we here address: whether a federal court can dismiss under the forum non conveniens doctrine before definitively ascertaining its own jurisdiction. Confining the statements we have quoted to the setting in which they were made, we find in Gulf Oil no hindrance to the decision we reach today. The Third Circuit expressed the further concern that a court failing first to establish its jurisdiction could not condition a forum non conveniens dismissal on the defendant’s waiver of any statute of limitations defense or objection to the foreign forum’s jurisdiction. Unable so to condition a dismissal, the Court of Appeals feared, a court could not shield the plaintiff against a foreign tribunal’s refusal to entertain the suit. 436 F. 3d, at 363, and n. 21. Accord In re Papandreou, 139 F. 3d, at 256, n. 6. Here, however, Malaysia International faces no genuine risk that the more convenient forum will not take up the case. Proceedings to resolve the parties’ dispute are underway in China, with Sinochem as the plaintiff. Jurisdiction of the Guangzhou Admiralty Court has been raised, determined, and affirmed on appeal. We therefore need not decide whether a court conditioning a forum non conveniens dismissal on the waiver of jurisdictional or limitations defenses in the foreign forum must first determine its own authority to adjudicate the case. V This is a textbook case for immediate forum non conveniens dismissal. The District Court’s subject-matter jurisdiction presented an issue of first impression in the Third Circuit, see 436 F. 3d, at 355, and was considered at some length by the courts below. Discovery concerning personal jurisdiction would have burdened Sinochem with expense and delay. And all to scant purpose: The District Court inevitably would dismiss the case without reaching the merits, given its well-considered forum non conveniens appraisal. Judicial economy is disserved by continuing litigation in the Eastern District of Pennsylvania given the proceedings long launched in China. And the gravamen of Malaysia International’s complaint—misrepresentations to the Guangzhou Admiralty Court in the course of securing arrest of the vessel in China—is an issue best left for determination by the Chinese courts. If, however, a court can readily determine that it lacks jurisdiction over the cause or the defendant, the proper course would be to dismiss on that ground. In the mine run of cases, jurisdiction “will involve no arduous inquiry” and both judicial economy and the consideration ordinarily accorded the plaintiff’s choice of forum “should impel the federal court to dispose of [those] issue[s] first.” Ruhrgas, 526 U. S., at 587–588. But where subject-matter or personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course. * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
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551.US.74
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In private actions under 42 U. S. C. §1983, federal district courts may “allow the prevailing party … a reasonable attorney’s fee as part of the costs.” §1988(b). Plaintiff-respondent Wyner notified the Florida Department of Environmental Protection (DEP), in mid-January 2003, of her intention to create on Valentine’s Day, within MacArthur State Beach Park, an antiwar artwork consisting of nude individuals assembled into a peace sign. Responding on February 6, DEP informed Wyner that her display would be lawful only if the participants complied with Florida’s “Bathing Suit Rule,” which requires patrons of state parks to wear, at a minimum, a thong and, if female, a bikini top. To safeguard her display, and future nude expressive activities, against police interference, Wyner and a coplaintiff (collectively Wyner or plaintiff) sued Florida officials in the Federal District Court on February 12. Invoking the First Amendment’s protection of expressive conduct, Wyner requested immediate injunctive relief against interference with the peace sign display and permanent injunctive relief against interference with future activities similarly involving nudity. An attachment to the complaint set out a 1995 settlement with DEP permitting Wyner to stage a play with nude performers at MacArthur Beach provided the area was screened off to shield beachgoers who did not wish to see the play. Although disconcerted by the hurried character of the proceeding, the District Court granted Wyner a preliminary injunction on February 13, suggesting that a curtain or screen could satisfy the interests of both the State and Wyner. The peace symbol display that took place the next day was set up outside a barrier apparently put up by the State. Once disassembled from the peace symbol formation, participants went into the water in the nude. Thereafter, Wyner pursued her demand for a permanent injunction, noting that she intended to put on another Valentine’s Day production at MacArthur Beach, again involving nudity. After discovery, both sides moved for summary judgment. At a January 21, 2004 hearing, Wyner’s counsel acknowledged that the peace symbol display participants had set up in front of the barrier. The court denied plaintiff’s motion for summary judgment and granted defendants’ motion for summary final judgment. The deliberate failure of Wyner and her coparticipants to stay behind the screen at the 2003 Valentine’s Day display, the court concluded, demonstrated that the Bathing Suit Rule’s prohibition of nudity was essential to protect the visiting public. While Wyner ultimately failed to prevail on the merits, the court added, she did obtain a preliminary injunction, and therefore qualified as a prevailing party to that extent. Reasoning that the preliminary injunction could not be revisited at the second stage of the litigation because it had expired, the court awarded plaintiff counsel fees covering the first phase of the litigation. The Florida officials appealed, challenging both the preliminary injunction and the counsel fees award. The Eleventh Circuit held first that defendants’ challenges to the preliminary injunction were moot. The court then affirmed the counsel fees award, reasoning that the preliminary order allowed Wyner to present the peace symbol display unimpeded by adverse state action. Held: Prevailing party status does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case. Pp. 6–11. (a) “The touchstone of the prevailing party inquiry” this Court has stated, is “the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792–793. At the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff’s ultimate success on the merits. The foundation for that assessment will be more or less secure depending on the thoroughness of the exploration undertaken by the parties and the court. In this case, the preliminary injunction hearing was necessarily hasty and abbreviated. There was no time for discovery, nor for adequate review of documents or preparation and presentation of witnesses. The provisional relief granted expired before appellate review could be gained, and the court’s threshold ruling would have no preclusive effect in the continuing litigation, as both the District Court and the Court of Appeals considered the preliminary injunction moot once the display took place. The provisional relief’s tentative character, in view of the continuation of the litigation to definitively resolve the controversy, would have made a fee request at the initial stage premature. Of controlling importance, the eventual ruling on the merits for defendants, after both sides considered the case fit for final adjudication, superseded the preliminary ruling. Wyner’s temporary success rested on a premise—the understanding that a curtain or screen would adequately serve Florida’s interest in shielding the public from nudity—that the District Court, with the benefit of a fuller record, ultimately rejected. Wyner contends that the preliminary injunction was not undermined by the subsequent merits adjudication because the decision to grant preliminary relief was an “as applied” ruling based on the officials’ impermissible content-based administration of the Bathing Suit Rule. But the District Court assumed content neutrality for purposes of its preliminary order. The final decision in Wyner’s case rejected the same claim she advanced in her preliminary injunction motion: that the state law banning nudity in parks was unconstitutional as applied to expressive, nonerotic nudity. At the end of the fray, Florida’s Bathing Suit Rule remained intact. Wyner had gained no enduring “chang[e] [in] the legal relationship” between herself and the state officials she sued. See Texas State Teachers Assn., 489 U. S., at 792. Pp. 6–10. (b) Wyner is not a prevailing party, for her initial victory was ephemeral. This Court expresses no view on whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees. It decides only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under §1988(b) if the merits of the case are ultimately decided against her. Pp. 10–11. 179 Fed. Appx. 566, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court.
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For private actions brought under 42 U. S. C. §1983 and other specified measures designed to secure civil rights, Congress established an exception to the “American Rule” that “the prevailing litigant is ordinarily not entitled to collect [counsel fees] from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). That exception, codified in 42 U. S. C. §1988(b), authorizes federal district courts, in their discretion, to “allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” This case presents a sole question: Does a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify as a “prevailing party” within the compass of §1988(b)? Viewing the two stages of the litigation as discrete episodes, plaintiffs below, respondents here, maintain that they prevailed at the preliminary injunction stage, and therefore qualify for a fee award for their counsels’ efforts to obtain that interim relief. Defendants below, petitioners here, regard the case as a unit; they urge that a preliminary injunction holds no sway once fuller consideration yields rejection of the provisional order’s legal or factual underpinnings. We agree with the latter position and hold that a final decision on the merits denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of §1988(b). A plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded. I In mid-January 2003, plaintiff-respondent T. A. Wyner notified the Florida Department of Environmental Protection (DEP) of her intention to create on Valentine’s Day, February 14, 2003, within John D. MacArthur Beach State Park, an antiwar artwork. The work would consist of nude individuals assembled into a peace sign. By letter dated February 6, DEP informed Wyner that her peace sign display would be lawful only if the participants complied with the “Bathing Suit Rule” set out in Florida Administrative Code §62D–2.014(7)(b) (2005). That rule required patrons, in all areas of Florida’s state parks, to wear, at a minimum, a thong and, if female, a bikini top.[Footnote 1] To safeguard the Valentine’s Day display, and future expressive activities of the same order, against police interference, Wyner filed suit in the United States District Court for the Southern District of Florida on February 12, 2003. She invoked the First Amendment’s protection of expressive conduct, and named as defendants the Secretary of DEP and the Manager of MacArthur Beach Park.[Footnote 2] Her complaint requested immediate injunctive relief against interference with the peace sign display, App. 18, and permanent injunctive relief against interference with “future expressive activities that may include non-erotic displays of nude human bodies,” id., at 19. An exhibit attached to the complaint set out a May 12, 1995 Stipulation for Settlement with DEP. Id., at 22–23. That settlement had facilitated a February 19, 1996 play Wyner coordinated at MacArthur Beach, a production involving nude performers. A term of the settlement provided that Wyner would “arrange for placement of a bolt of cloth in a semi-circle around the area where the play [would] be performed,” id., at 23, so that beachgoers who did not wish to see the play would be shielded from the nude performers. The day after the complaint was filed, on February 13, 2003, the District Court heard Wyner’s emergency motion for a preliminary injunction. Although disconcerted by the hurried character of the proceeding, see id., at 37, 93, 95, the court granted the preliminary injunction. “The choice,” the court explained, “need not be either/or.” Wyner v. Struhs, 254 F. Supp. 2d 1297, 1303 (SD Fla. 2003). Pointing to the May 1995 settlement laying out “agreed-upon manner restrictions,” the court determined that “[p]laintiff[’s] desired expression and the interests of the state may both be satisfied simultaneously.” Ibid. In this regard, the court had inquired of DEP’s counsel at the preliminary injunction hearing: “Why wouldn’t the curtain or screen solve the problem of somebody [who] doesn’t want to see . . . nudity? Seems like that would solve [the] problem, wouldn’t it?” App. 86. Counsel for DEP responded: “That’s an option. I don’t think necessarily [defendants] would be opposed to that … .” Ibid.; see id., at 74 (testimony of Chief of Operations for Florida Park Service at the preliminary injunction hearing that the Service’s counsel, on prior occasions, had advised: “[I]f they go behind the screen and they liv[e] up to the agreement then it’s okay. If they don’t go behind the screen and they don’t live up to the agreement then it’s not okay.”). The peace symbol display took place at MacArthur Beach the next day. A screen was put up, apparently by the State, as the District Court anticipated. See id., at 108. See also id., at 94 (District Judge’s statement at the conclusion of the preliminary injunction hearing: “I want to make it clear . . . that the [preliminary] injunction doesn’t preclude the department, if it chooses, from using … some sort of barrier . . . .”). But the display was set up outside the barrier, and participants, once disassembled from the peace symbol formation, went into the water in the nude. See id., at 108; Deposition of T. A. Wyner in Civ. Action No. 03–80103 (SD Fla., Nov. 14, 2003), pp. 99–100. Thereafter, Wyner pursued her demand for a permanent injunction. Her counsel represented that on February 14, 2004, Wyner intended to put on another production at MacArthur Beach, again involving nudity. See App. 107. After discovery, both sides moved for summary judgment. At the hearing on the motions, held January 21, 2004, the District Court asked Wyner’s counsel about the screen put up around the preceding year’s peace symbol display. Counsel acknowledged that the participants in that display ignored the barrier and set up in front of the screen. Id., at 108. A week later, having unsuccessfully urged the parties to resolve the case as “[they] did before in [the 1995] settlement,” id., at 143, the court denied plaintiff’s motion for summary judgment and granted defendants’ motion for summary final judgment. The deliberate failure of Wyner and her coparticipants to remain behind the screen at the 2003 Valentine’s Day display, the court concluded, demonstrated that the Bathing Suit Rule’s prohibition of nudity was “no greater than is essential . . . to protect the experiences of the visiting public.” Wyner v. Struhs, Case No. 03–80103–CIV (SD Fla., Jan. 28, 2004) (Summary Judgment Order), App. to Pet. for Cert. 42a. While Wyner ultimately failed to prevail on the merits, the court added, she did obtain a preliminary injunction prohibiting police interference with the Valentine’s Day 2003 temporary art installation, id., at 45a, and therefore qualified as a prevailing party to that extent, see Wyner v. Struhs, Case No. 03–80103–CIV (SD Fla., Aug. 16, 2004) (Omnibus Order), App. to Brief in Opposition 5a–13a. The preliminary injunction could not be revisited at the second stage of the litigation, the court noted, for it had “expired on its own terms.” Id., at 4a. So reasoning, the court awarded plaintiff counsel fees covering the first phase of the litigation. The Florida officials appealed, challenging both the order granting a preliminary injunction and the award of counsel fees. Wyner, however, pursued no appeal from the final order denying a permanent injunction. The Court of Appeals for the Eleventh Circuit held first that defendants’ challenges to the preliminary injunction were moot because they addressed “a finite event that occurred and ended on a specific, past date.” Wyner v. Struhs, 179 Fed. Appx. 566, 567, n. 1 (2006) (per curiam). The court then affirmed the counsel fees award, reasoning that plaintiff had gained through the preliminary injunction “the primary relief [she] sought,” i.e., the preliminary order allowed her to present the peace symbol display unimpeded by adverse state action. Id., at 569. Wyner would not have qualified for an award of counsel fees, the court recognized, had the preliminary injunction rested on a mistake of law. Id., at 568, 569–570. But it was “new developments,” the court said, id., at 569, not any legal error, that accounted for her failure “to achieve actual success on the merits at the permanent injunction stage,” id., at 569, n. 7. Plaintiff and others participating in the display, as Wyner’s counsel admitted, did not stay behind the barrier at the peace symbol display, id., at 569; further, the court noted, “a fair reading of the record show[ed] that [p]laintif[f] had no intention of remaining behind a [barrier] during future nude expressive works,” ibid. The likelihood of success shown at the preliminary injunction stage, the court explained, id., at 569, n. 7, had been overtaken by the subsequent “demonstrat[ion] that the less restrictive alternative,” i.e., a cloth screen or other barrier, “was not sufficient to protect the government’s interest,” id., at 569. But that demonstration, the court concluded, did not bar an award of fees, because the “new facts” emerged only at the summary judgment stage. Ibid. We granted certiorari, Struhs v. Wyner, 549 U. S. ___ (2007), and now reverse. II “The touchstone of the prevailing party inquiry,” this Court has stated, is “the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 792–793 (1989). See Hewitt v. Helms, 482 U. S. 755, 760 (1987) (plaintiff must “receive at least some relief on the merits of his claim before he can be said to prevail”); Maher v. Gagne, 448 U. S. 122, 129 (1980) (upholding fees where plaintiffs settled and obtained a consent decree); cf. Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 605 (2001) (precedent “counsel[s] against holding that the term ‘prevailing party’ authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship of the parties”).[Footnote 3] The petitioning state officials maintain that plaintiff here does not satisfy that standard for, as a consequence of the final summary judgment, “[t]he state law whose constitutionality [Wyner] attacked [i.e., the Bathing Suit Rule,] remains valid and enforceable today.” Brief for Petitioners 3. The District Court left no doubt on that score, the state officials emphasize; ordering final judgment for defendants, the court expressed, in the bottom line of its opinion, its “hope” that plaintiff would continue to use the park, “albeit not in the nude.” Summary Judgment Order, App. to Pet. for Cert. 46a. Wyner, on the other hand, urges that despite the denial of a permanent injunction, she got precisely what she wanted when she commenced this litigation: permission to create the nude peace symbol without state interference. That fleeting success, however, did not establish that she prevailed on the gravamen of her plea for injunctive relief, i.e., her charge that the state officials had denied her and other participants in the peace symbol display “the right to engage in constitutionally protected expressive activities.” App. 18. Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.[Footnote 4] At the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff’s ultimate success on the merits. See, e.g., Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666 (2004); Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975). The foundation for that assessment will be more or less secure depending on the thoroughness of the exploration undertaken by the parties and the court. In some cases, the proceedings prior to a grant of temporary relief are searching; in others, little time and resources are spent on the threshold contest. In this case, the preliminary injunction hearing was necessarily hasty and abbreviated. Held one day after the complaint was filed and one day before the event, the timing afforded the state officer defendants little opportunity to oppose Wyner’s emergency motion. Counsel for the state defendants appeared only by telephone. App. 36. The emergency proceeding allowed no time for discovery, nor for adequate review of documents or preparation and presentation of witnesses. See id., at 38–39. The provisional relief immediately granted expired before appellate review could be gained, and the court’s threshold ruling would have no preclusive effect in the continuing litigation. Both the District Court and the Court of Appeals considered the preliminary injunction a moot issue, not fit for reexamination or review, once the display took place. See Summary Judgment Order, App. to Pet. for Cert. 34a; Omnibus Order, App. to Brief in Opposition 3a–4a; 179 Fed. Appx., at 567, n. 1; cf. Lewis v. Continental Bank Corp., 494 U. S. 472, 477–479 (1990). In short, the provisional relief granted terminated only the parties’ opening engagement. Its tentative character, in view of the continuation of the litigation to definitively resolve the controversy, would have made a fee request at the initial stage premature. Of controlling importance to our decision, the eventual ruling on the merits for defendants, after both sides considered the case fit for final adjudication, superseded the preliminary ruling. Wyner’s temporary success rested on a premise the District Court ultimately rejected. That court granted preliminary relief on the understanding that a curtain or screen would adequately serve Florida’s interest in shielding the public from nudity that recreational beach users did not wish to see. See supra, at 3–4; 254 F. Supp. 2d, at 1303 (noting that the parties had previously agreed upon “a number of . . . manner restrictions that are far less restrictive than the total ban on nudity”). At the summary judgment stage, with the benefit of a fuller record, the District Court recognized that its initial assessment was incorrect. Participants in the peace symbol display were in fact unwilling to stay behind a screen that separated them from other park visitors. See Summary Judgment Order, App. to Pet. for Cert. 42a. See also App. 108 (acknowledgment by Wyner’s counsel that participants in the February 14, 2003 protest “in effec[t] ignored the screen”). In light of the demonstrated inadequacy of the screen to contain the nude display, the District Court determined that enforcement of the Bathing Suit Rule was necessary to “preserv[e] park aesthetics” and “protect the experiences of the visiting public.” Summary Judgment Order, App. to Pet. for Cert. 41a, 42a. Wyner contends that the preliminary injunction was not undermined by the subsequent adjudication on the merits because the decision to grant preliminary relief was an “as applied” ruling. In developing this argument, she asserts that the officials engaged in impermissible content-based administration of the Bathing Suit Rule. But the District Court assumed, “for the purposes of [its initial] order,” the content neutrality of the state officials’ conduct. See 254 F. Supp. 2d, at 1302. See also 179 Fed. Appx., at 568, and n. 4 (reiterating that, “for the sake of the preliminary injunction order,” the District Court “assumed content neutrality”). That specification is controlling. See Fed. Rule Civ. Proc. 65(d) (requiring every injunction to “set forth the reasons for its issuance” and “be specific in terms”). See also Schmidt v. Lessard, 414 U. S. 473, 476 (1974) (per curiam) (Rule 65(d) “was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders.”). The final decision in Wyner’s case rejected the same claim she advanced in her preliminary injunction motion: that the state law banning nudity in parks was unconstitutional as applied to expressive, nonerotic nudity. At the end of the fray, Florida’s Bathing Suit Rule remained intact, and Wyner had gained no enduring “chang[e] [in] the legal relationship” between herself and the state officials she sued. See Texas State Teachers Assn., 489 U. S., at 792. III Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral. A plaintiff who “secur[es] a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against [her],” has “[won] a battle but los[t] the war.” Watson v. County of Riverside, 300 F. 3d 1092, 1096 (CA9 2002). We are presented with, and therefore decide, no broader issue in this case. We express no view on whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees. We decide only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under §1988(b) if the merits of the case are ultimately decided against her. * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Footnote 1 The rule reads: “In every area of a park including bathing areas no individual shall expose the human, male or female genitals, pubic area, the entire buttocks or female breast below the top of the nipple, with less than a fully opaque covering.” Fla. Admin. Code Ann. §62D–2.014(7)(b) (2005). Footnote 2 Wyner was joined by coplaintiff George Simon, who served as a videographer for expressive activities Wyner previously organized at MacArthur Beach. See App. 13. For convenience, we refer to the coplaintiffs collectively as Wyner or plaintiff. Footnote 3 Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598, 600 (2001), held that the term “prevailing party” in the fee-shifting provisions of the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990 does not “includ[e] a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” The dissent in Buckhannon would have deemed such a plaintiff “prevailing,” not because of any temporary relief gained (in that case, a consent stay pending litigation), but because the lawsuit caused the State to amend its laws, terminating the controversy between the parties, and permanently giving plaintiff the real-world outcome it sought. See id., at 622, 624–625 (opinion of Ginsburg, J.). Our decision today is consistent with the views of both the majority and the dissenters in Buckhannon. Footnote 4 In resolving Wyner’s claim for counsel fees, we express no opinion on the dimensions of the First Amendment’s protection for artworks that involve nudity.
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551.US.308
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As a check against abusive litigation in private securities fraud actions, the Private Securities Litigation Reform Act of 1995 (PSLRA) includes exacting pleading requirements. The Act requires plaintiffs to state with particularity both the facts constituting the alleged violation, and the facts evidencing scienter, i.e., the defendant’s intention “to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U. S. 185, 194, and n. 12. As set out in §21D(b)(2), plaintiffs must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U. S. C. §78u–4(b)(2). Congress left the key term “strong inference” undefined. Petitioner Tellabs, Inc., manufactures specialized equipment for fiber optic networks. Respondents (Shareholders) purchased Tellabs stock between December 11, 2000, and June 19, 2001. They filed a class action, alleging that Tellabs and petitioner Notebaert, then Tellabs’ chief executive officer and president, had engaged in securities fraud in violation of §10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b–5, and that Notebaert was a “controlling person” under the 1934 Act, and therefore derivatively liable for the company’s fraudulent acts. Tellabs moved to dismiss the complaint on the ground that the Shareholders had failed to plead their case with the particularity the PSLRA requires. The District Court agreed, dismissing the complaint without prejudice. The Shareholders then amended their complaint, adding references to 27 confidential sources and making further, more specific, allegations concerning Notebaert’s mental state. The District Court again dismissed, this time with prejudice. The Shareholders had sufficiently pleaded that Notebaert’s statements were misleading, the court determined, but they had insufficiently alleged that he acted with scienter. The Seventh Circuit reversed in relevant part. Like the District Court, it found that the Shareholders had pleaded the misleading character of Notebaert’s statements with sufficient particularity. Unlike the District Court, however, it concluded that the Shareholders had sufficiently alleged that Notebaert acted with the requisite state of mind. In evaluating whether the PSLRA’s pleading standard is met, the Circuit said, courts should examine all of the complaint’s allegations to decide whether collectively they establish an inference of scienter; the complaint would survive, the court stated, if a reasonable person could infer from the complaint’s allegations that the defendant acted with the requisite state of mind. Held: To qualify as “strong” within the intendment of §21D(b)(2), an inference of scienter must be more than merely plausible or reasonable—it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. Pp. 6–18. (a) Setting a uniform pleading standard for §10(b) actions was among Congress’ objectives in enacting the PSLRA. Designed to curb perceived abuses of the §10(b) private action, the PSLRA installed both substantive and procedural controls. As relevant here, §21D(b) of the PSLRA “impose[d] heightened pleading requirements in [§10(b) and Rule 10b–5] actions.” Dabit, 547 U. S., at 81. In the instant case, the District Court and the Seventh Circuit agreed that the complaint sufficiently specified Notebaert’s alleged misleading statements and the reasons why the statements were misleading. But those courts disagreed on whether the Shareholders, as required by §21D(b)(2), “state[d] with particularity facts giving rise to a strong inference that [Notebaert] acted with [scienter],” §78u–4(b)(2). Congress did not shed much light on what facts would create a strong inference or how courts could determine the existence of the requisite inference. With no clear guide from Congress other than its “inten[tion] to strengthen existing pleading requirements,” H. R. Conf. Rep., at 41, Courts of Appeals have diverged in construing the term “strong inference.” Among the uncertainties, should courts consider competing inferences in determining whether an inference of scienter is “strong”? This Court’s task is to prescribe a workable construction of the “strong inference” standard, a reading geared to the PSLRA’s twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors’ ability to recover on meritorious claims. Pp. 6–10. (b) The Court establishes the following prescriptions: First, faced with a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss a §10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164. Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions. The inquiry is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard. Third, in determining whether the pleaded facts give rise to a “strong” inference of scienter, the court must take into account plausible opposing inferences. The Seventh Circuit expressly declined to engage in such a comparative inquiry. But in §21D(b)(2), Congress did not merely require plaintiffs to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a “strong”—i.e., a powerful or cogent—inference. To determine whether the plaintiff has alleged facts giving rise to the requisite “strong inference,” a court must consider plausible nonculpable explanations for the defendant’s conduct, as well as inferences favoring the plaintiff. The inference that the defendant acted with scienter need not be irrefutable, but it must be more than merely “reasonable” or “permissible”—it must be cogent and compelling, thus strong in light of other explanations. A complaint will survive only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any plausible opposing inference one could draw from the facts alleged. Pp. 11–13. (c) Tellabs contends that when competing inferences are considered, Notebaert’s evident lack of pecuniary motive will be dispositive. The Court agrees that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference. The absence of a motive allegation, however, is not fatal for allegations must be considered collectively; the significance that can be ascribed to an allegation of motive, or lack thereof, depends on the complaint’s entirety. Tellabs also maintains that several of the Shareholders’ allegations are too vague or ambiguous to contribute to a strong inference of scienter. While omissions and ambiguities count against inferring scienter, the court’s job is not to scrutinize each allegation in isolation but to access all the allegations holistically. Pp. 13–15. (d) The Seventh Circuit was unduly concerned that a court’s comparative assessment of plausible inferences would impinge upon the Seventh Amendment right to jury trial. Congress, as creator of federal statutory claims, has power to prescribe what must be pleaded to state the claim, just as it has power to determine what must be proved to prevail on the merits. It is the federal lawmaker’s prerogative, therefore, to allow, disallow, or shape the contours of—including the pleading and proof requirements for—§10(b) private actions. This Court has never questioned that authority in general, or suggested, in particular, that the Seventh Amendment inhibits Congress from establishing whatever pleading requirements it finds appropriate for federal statutory claims. Provided that the Shareholders have satisfied the congressionally “prescribe[d] … means of making an issue,” Fidelity & Deposit Co. of Md. v. United States, 187 U. S. 315, 320, the case will fall within the jury’s authority to assess the credibility of witnesses, resolve genuine issues of fact, and make the ultimate determination whether Notebaert and, by imputation, Tellabs acted with scienter. Under this Court’s construction of the “strong inference” standard, a plaintiff is not forced to plead more than she would be required to prove at trial. A plaintiff alleging fraud under §10(b) must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference. At trial, she must then prove her case by a “preponderance of the evidence.” Pp. 15–17. (e) Neither the District Court nor the Court of Appeals had the opportunity to consider whether the Shareholders’ allegations warrant “a strong inference that [Notebaert and Tellabs] acted with the required state of mind,” 15 U. S. C. §78u–4(b)(2), in light of the prescriptions announced today. Thus, the case is remanded for a determination under this Court’s construction of §21D(b)(2). P. 18. 437 F. 3d 588, vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, and Breyer, JJ., joined. Scalia, J., and Alito, J., filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion.
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This Court has long recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission (SEC). See, e.g., Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 345 (2005); J. I. Case Co. v. Borak, 377 U. S. 426, 432 (1964). Private securities fraud actions, however, if not adequately contained, can be employed abusively to impose substantial costs on companies and individuals whose conduct conforms to the law. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 81 (2006). As a check against abusive litigation by private parties, Congress enacted the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 737. Exacting pleading requirements are among the control measures Congress included in the PSLRA. The Act requires plaintiffs to state with particularity both the facts constituting the alleged violation, and the facts evidencing scienter, i.e., the defendant’s intention “to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U. S. 185, 194, and n. 12 (1976); see 15 U. S. C. §78u–4(b)(1),(2). This case concerns the latter requirement. As set out in §21D(b)(2) of the PSLRA, plaintiffs must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U. S. C. §78u–4(b)(2). Congress left the key term “strong inference” undefined, and Courts of Appeals have divided on its meaning. In the case before us, the Court of Appeals for the Seventh Circuit held that the “strong inference” standard would be met if the complaint “allege[d] facts from which, if true, a reasonable person could infer that the defendant acted with the required intent.” 437 F. 3d 588, 602 (2006). That formulation, we conclude, does not capture the stricter demand Congress sought to convey in §21D(b)(2). It does not suffice that a reasonable factfinder plausibly could infer from the complaint’s allegations the requisite state of mind. Rather, to determine whether a complaint’s scienter allegations can survive threshold inspection for sufficiency, a court governed by §21D(b)(2) must engage in a comparative evaluation; it must consider, not only inferences urged by the plaintiff, as the Seventh Circuit did, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for the defendant’s conduct. To qualify as “strong” within the intendment of §21D(b)(2), we hold, an inference of scienter must be more than merely plausible or reasonable—it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. I Petitioner Tellabs, Inc., manufactures specialized equipment used in fiber optic networks. During the time period relevant to this case, petitioner Richard Notebaert was Tellabs’ chief executive officer and president. Respondents (Shareholders) are persons who purchased Tellabs stock between December 11, 2000, and June 19, 2001. They accuse Tellabs and Notebaert (as well as several other Tellabs executives) of engaging in a scheme to deceive the investing public about the true value of Tellabs’ stock. See 437 F. 3d, at 591; App. 94–98.[Footnote 1] Beginning on December 11, 2000, the Shareholders allege, Notebaert (and by imputation Tellabs) “falsely reassured public investors, in a series of statements … that Tellabs was continuing to enjoy strong demand for its products and earning record revenues,” when, in fact, Notebaert knew the opposite was true. Id., at 94–95, 98. From December 2000 until the spring of 2001, the Shareholders claim, Notebaert knowingly misled the public in four ways. 437 F. 3d, at 596. First, he made statements indicating that demand for Tellabs’ flagship networking device, the TITAN 5500, was continuing to grow, when in fact demand for that product was waning. Id., at 596, 597. Second, Notebaert made statements indicating that the TITAN 6500, Tellabs’ next-generation networking device, was available for delivery, and that demand for that product was strong and growing, when in truth the product was not ready for delivery and demand was weak. Id., at 596, 597–598. Third, he falsely represented Tellabs’ financial results for the fourth quarter of 2000 (and, in connection with those results, condoned the practice of “channel stuffing,” under which Tellabs flooded its customers with unwanted products). Id., at 596, 598. Fourth, Notebaert made a series of overstated revenue projections, when demand for the TITAN 5500 was drying up and production of the TITAN 6500 was behind schedule. Id., at 596, 598–599. Based on Notebaert’s sunny assessments, the Shareholders contend, market analysts recommended that investors buy Tellabs’ stock. See id., at 592. The first public glimmer that business was not so healthy came in March 2001 when Tellabs modestly reduced its first quarter sales projections. Ibid. In the next months, Tellabs made progressively more cautious statements about its projected sales. On June 19, 2001, the last day of the class period, Tellabs disclosed that demand for the TITAN 5500 had significantly dropped. Id., at 593. Simultaneously, the company substantially lowered its revenue projections for the second quarter of 2001. The next day, the price of Tellabs stock, which had reached a high of $67 during the period, plunged to a low of $15.87. Ibid. On December 3, 2002, the Shareholders filed a class action in the District Court for the Northern District of Illinois. Ibid. Their complaint stated, inter alia, that Tellabs and Notebaert had engaged in securities fraud in violation of §10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. §78j(b), and SEC Rule 10b–5, 17 CFR §240.10b–5 (2006), also that Notebaert was a “controlling person” under §20(a) of the 1934 Act, 15 U. S. C. §78t(a), and therefore derivatively liable for the company’s fraudulent acts. See App. 98–101, 167–171. Tellabs moved to dismiss the complaint on the ground that the Shareholders had failed to plead their case with the particularity the PSLRA requires. The District Court agreed, and therefore dismissed the complaint without prejudice. App. to Pet. for Cert. 80a–117a; see Johnson v. Tellabs, Inc., 303 F. Supp. 2d 941, 945 (ND Ill. 2004). The Shareholders then amended their complaint, adding references to 27 confidential sources and making further, more specific, allegations concerning Notebaert’s mental state. See 437 F. 3d, at 594; App. 91–93, 152–160. The District Court again dismissed, this time with prejudice. 303 F. Supp. 2d, at 971. The Shareholders had sufficiently pleaded that Notebaert’s statements were misleading, the court determined, id., at 955–961, but they had insufficiently alleged that he acted with scienter, id., at 954–955, 961–969. The Court of Appeals for the Seventh Circuit reversed in relevant part. 437 F. 3d, at 591. Like the District Court, the Court of Appeals found that the Shareholders had pleaded the misleading character of Notebaert’s statements with sufficient particularity. Id., at 595–600. Unlike the District Court, however, the Seventh Circuit concluded that the Shareholders had sufficiently alleged that Notebaert acted with the requisite state of mind. Id., at 603–605. The Court of Appeals recognized that the PSLRA “unequivocally raise[d] the bar for pleading scienter” by requiring plaintiffs to “plea[d] sufficient facts to create a strong inference of scienter.” Id., at 601 (internal quotation marks omitted). In evaluating whether that pleading standard is met, the Seventh Circuit said, “courts [should] examine all of the allegations in the complaint and then … decide whether collectively they establish such an inference.” Ibid. “[W]e will allow the complaint to survive,” the court next and critically stated, “if it alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent … . If a reasonable person could not draw such an inference from the alleged facts, the defendants are entitled to dismissal.” Id., at 602. In adopting its standard for the survival of a complaint, the Seventh Circuit explicitly rejected a stiffer standard adopted by the Sixth Circuit, i.e., that “plaintiffs are entitled only to the most plausible of competing inferences.” Id., at 601, 602 (quoting Fidel v. Farley, 392 F. 3d 220, 227 (CA6 2004)). The Sixth Circuit’s standard, the court observed, because it involved an assessment of competing inferences, “could potentially infringe upon plaintiffs’ Seventh Amendment rights.” 437 F. 3d, at 602. We granted certiorari to resolve the disagreement among the Circuits on whether, and to what extent, a court must consider competing inferences in determining whether a securities fraud complaint gives rise to a “strong inference” of scienter.[Footnote 2] 549 U. S. ___ (2007). II Section 10(b) of the Securities Exchange Act of 1934 forbids the “use or employ, in connection with the purchase or sale of any security … , [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors.” 15 U. S. C. §78j(b). SEC Rule 10b–5 implements §10(b) by declaring it unlawful: “(a) To employ any device, scheme, or artifice to defraud, “(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made … not misleading, or “(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 CFR §240.10b–5. Section 10(b), this Court has implied from the statute’s text and purpose, affords a right of action to purchasers or sellers of securities injured by its violation. See, e.g., Dura Pharmaceuticals, 544 U. S., at 341. See also id., at 345 (“The securities statutes seek to maintain public confidence in the marketplace … . by deterring fraud, in part, through the availability of private securities fraud actions.”); Borak, 377 U. S., at 432 (private securities fraud actions provide “a most effective weapon in the enforcement” of securities laws and are “a necessary supplement to Commission action”). To establish liability under §10(b) and Rule 10b–5, a private plaintiff must prove that the defendant acted with scienter, “a mental state embracing intent to deceive, manipulate, or defraud.” Ernst & Ernst, 425 U. S., at 193–194, and n. 12.[Footnote 3] In an ordinary civil action, the Federal Rules of Civil Procedure require only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). Although the rule encourages brevity, the complaint must say enough to give the defendant “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Dura Pharmaceuticals, 544 U. S., at 346 (internal quotation marks omitted). Prior to the enactment of the PSLRA, the sufficiency of a complaint for securities fraud was governed not by Rule 8, but by the heightened pleading standard set forth in Rule 9(b). See Greenstone v. Cambex Corp., 975 F. 2d 22, 25 (CA1 1992) (Breyer, J.) (collecting cases). Rule 9(b) applies to “all averments of fraud or mistake”; it requires that “the circumstances constituting fraud … be stated with particularity” but provides that “[m]alice, intent, knowledge, and other condition of mind of a person, may be averred generally.” Courts of Appeals diverged on the character of the Rule 9(b) inquiry in §10(b) cases: Could securities fraud plaintiffs allege the requisite mental state “simply by stating that scienter existed,” In re GlenFed, Inc. Securities Litigation, 42 F. 3d 1541, 1546–1547 (CA9 1994) (en banc), or were they required to allege with particularity facts giving rise to an inference of scienter? Compare id., at 1546 (“We are not permitted to add new requirements to Rule 9(b) simply because we like the effects of doing so.”), with, e.g., Greenstone, 975 F. 2d, at 25 (were the law to permit a securities fraud complaint simply to allege scienter without supporting facts, “a complaint could evade too easily the ‘particularity’ requirement in Rule 9(b)’s first sentence”). Circuits requiring plaintiffs to allege specific facts indicating scienter expressed that requirement variously. See 5A C. Wright & A. Miller, Federal Practice and Procedure §1301.1, pp. 300–302 (3d ed. 2004) (hereinafter Wright & Miller). The Second Circuit’s formulation was the most stringent. Securities fraud plaintiffs in that Circuit were required to “specifically plead those [facts] which they assert give rise to a strong inference that the defendants had” the requisite state of mind. Ross v. A. H. Robins Co., 607 F. 2d 545, 558 (1979) (emphasis added). The “strong inference” formulation was appropriate, the Second Circuit said, to ward off allegations of “fraud by hindsight.” See, e.g., Shields v. Citytrust Bancorp, Inc., 25 F. 3d 1124, 1129 (1994) (quoting Denny v. Barber, 576 F. 2d 465, 470 (CA2 1978) (Friendly, J.)). Setting a uniform pleading standard for §10(b) actions was among Congress’ objectives when it enacted the PSLRA. Designed to curb perceived abuses of the §10(b) private action—“nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests and manipulation by class action lawyers,” Dabit, 547 U. S., at 81 (quoting H. R. Conf. Rep. No. 104–369, p. 31 (1995) (hereinafter H. R. Conf. Rep.))—the PSLRA installed both substantive and procedural controls.[Footnote 4] Notably, Congress prescribed new procedures for the appointment of lead plaintiffs and lead counsel. This innovation aimed to increase the likelihood that institutional investors—parties more likely to balance the interests of the class with the long-term interests of the company—would serve as lead plaintiffs. See id., at 33–34; S. Rep. No. 104–98, p. 11 (1995). Congress also “limit[ed] recoverable damages and attorney’s fees, provide[d] a ‘safe harbor’ for forward-looking statements, … mandate[d] imposition of sanctions for frivolous litigation, and authorize[d] a stay of discovery pending resolution of any motion to dismiss.” Dabit, 547 U. S., at 81. And in §21D(b) of the PSLRA, Congress “impose[d] heightened pleading requirements in actions brought pursuant to §10(b) and Rule 10b–5.” Ibid. Under the PSLRA’s heightened pleading instructions, any private securities complaint alleging that the defendant made a false or misleading statement must: (1) “specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading,” 15 U. S. C. §78u–4(b)(1); and (2) “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind,” §78u–4(b)(2). In the instant case, as earlier stated, see supra, at 5, the District Court and the Seventh Circuit agreed that the Shareholders met the first of the two requirements: The complaint sufficiently specified Notebaert’s alleged misleading statements and the reasons why the statements were misleading. 303 F. Supp. 2d, at 955–961; 437 F. 3d, at 596–600. But those courts disagreed on whether the Shareholders, as required by §21D(b)(2), “state[d] with particularity facts giving rise to a strong inference that [Notebaert] acted with [scienter],” §78u–4(b)(2). See supra, at 5. The “strong inference” standard “unequivocally raise[d] the bar for pleading scienter,” 437 F. 3d, at 601, and signaled Congress’ purpose to promote greater uniformity among the Circuits, see H. R. Conf. Rep., p. 41. But “Congress did not … throw much light on what facts … suffice to create [a strong] inference,” or on what “degree of imagination courts can use in divining whether” the requisite inference exists. 437 F. 3d, at 601. While adopting the Second Circuit’s “strong inference” standard, Congress did not codify that Circuit’s case law interpreting the standard. See §78u–4(b)(2). See also Brief for United States as Amicus Curiae 18. With no clear guide from Congress other than its “inten[tion] to strengthen existing pleading requirements,” H. R. Conf. Rep., p. 41, Courts of Appeals have diverged again, this time in construing the term “strong inference.” Among the uncertainties, should courts consider competing inferences in determining whether an inference of scienter is “strong”? See 437 F. 3d, at 601–602 (collecting cases). Our task is to prescribe a workable construction of the “strong inference” standard, a reading geared to the PSLRA’s twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors’ ability to recover on meritorious claims. III A We establish the following prescriptions: First, faced with a Rule 12(b)(6) motion to dismiss a §10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164 (1993). On this point, the parties agree. See Reply Brief 8; Brief for Respondents 26; Brief for United States as Amicus Curiae 8, 20, 21. Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. See 5B Wright & Miller §1357 (3d ed. 2004 and Supp. 2007). The inquiry, as several Courts of Appeals have recognized, is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard. See, e.g., Abrams v. Baker Hughes Inc., 292 F. 3d 424, 431 (CA5 2002); Gompper v. VISX, Inc., 298 F. 3d 893, 897 (CA9 2002). See also Brief for United States as Amicus Curiae 25. Third, in determining whether the pleaded facts give rise to a “strong” inference of scienter, the court must take into account plausible opposing inferences. The Seventh Circuit expressly declined to engage in such a comparative inquiry. A complaint could survive, that court said, as long as it “alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent”; in other words, only “[i]f a reasonable person could not draw such an inference from the alleged facts” would the defendant prevail on a motion to dismiss. 437 F. 3d, at 602. But in §21D(b)(2), Congress did not merely require plaintiffs to “provide a factual basis for [their] scienter allegations,” ibid. (quoting In re Cerner Corp. Securities Litigation, 425 F. 3d 1079, 1084, 1085 (CA8 2005)), i.e., to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a “strong”—i.e., a powerful or cogent—inference. See American Heritage Dictionary 1717 (4th ed. 2000) (defining “strong” as “[p]ersuasive, effective, and cogent”); 16 Oxford English Dictionary 949 (2d ed. 1989) (defining “strong” as “[p]owerful to demonstrate or convince” (definition 16b)); cf. 7 id., at 924 (defining “inference” as “a conclusion [drawn] from known or assumed facts or statements”; “reasoning from something known or assumed to something else which follows from it”). The strength of an inference cannot be decided in a vacuum. The inquiry is inherently comparative: How likely is it that one conclusion, as compared to others, follows from the underlying facts? To determine whether the plaintiff has alleged facts that give rise to the requisite “strong inference” of scienter, a court must consider plausible nonculpable explanations for the defendant’s conduct, as well as inferences favoring the plaintiff. The inference that the defendant acted with scienter need not be irrefutable, i.e., of the “smoking-gun” genre, or even the “most plausible of competing inferences,” Fidel, 392 F. 3d, at 227 (quoting Helwig v. Vencor, Inc., 251 F. 3d 540, 553 (CA6 2001) (en banc)). Recall in this regard that §21D(b)’s pleading requirements are but one constraint among many the PSLRA installed to screen out frivolous suits, while allowing meritorious actions to move forward. See supra, at 9, and n. 4. Yet the inference of scienter must be more than merely “reasonable” or “permissible”—it must be cogent and compelling, thus strong in light of other explanations. A complaint will survive, we hold, only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.[Footnote 5] B Tellabs contends that when competing inferences are considered, Notebaert’s evident lack of pecuniary motive will be dispositive. The Shareholders, Tellabs stresses, did not allege that Notebaert sold any shares during the class period. See Brief for Petitioners 50 (“The absence of any allegations of motive color all the other allegations putatively giving rise to an inference of scienter.”). While it is true that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference, we agree with the Seventh Circuit that the absence of a motive allegation is not fatal. See 437 F. 3d, at 601. As earlier stated, supra, at 11, allegations must be considered collectively; the significance that can be ascribed to an allegation of motive, or lack thereof, depends on the entirety of the complaint. Tellabs also maintains that several of the Shareholders’ allegations are too vague or ambiguous to contribute to a strong inference of scienter. For example, the Shareholders alleged that Tellabs flooded its customers with unwanted products, a practice known as “channel stuffing.” See supra, at 3. But they failed, Tellabs argues, to specify whether the channel stuffing allegedly known to Notebaert was the illegitimate kind (e.g., writing orders for products customers had not requested) or the legitimate kind (e.g., offering customers discounts as an incentive to buy). Brief for Petitioners 44–46; Reply Brief 8. See also id., at 8–9 (complaint lacks precise dates of reports critical to distinguish legitimate conduct from culpable conduct). But see 437 F. 3d, at 598, 603–604 (pointing to multiple particulars alleged by the Shareholders, including specifications as to timing). We agree that omissions and ambiguities count against inferring scienter, for plaintiffs must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” §78u–4(b)(2). We reiterate, however, that the court’s job is not to scrutinize each allegation in isolation but to assess all the allegations holistically. See supra, at 11; 437 F. 3d, at 601. In sum, the reviewing court must ask: When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference? [Footnote 6] IV Accounting for its construction of §21D(b)(2), the Seventh Circuit explained that the court “th[ought] it wis[e] to adopt an approach that [could not] be misunderstood as a usurpation of the jury’s role.” 437 F. 3d, at 602. In our view, the Seventh Circuit’s concern was undue.[Footnote 7] A court’s comparative assessment of plausible inferences, while constantly assuming the plaintiff’s allegations to be true, we think it plain, does not impinge upon the Seventh Amendment right to jury trial.[Footnote 8] Congress, as creator of federal statutory claims, has power to prescribe what must be pleaded to state the claim, just as it has power to determine what must be proved to prevail on the merits. It is the federal lawmaker’s prerogative, therefore, to allow, disallow, or shape the contours of—including the pleading and proof requirements for—§10(b) private actions. No decision of this Court questions that authority in general, or suggests, in particular, that the Seventh Amendment inhibits Congress from establishing whatever pleading requirements it finds appropriate for federal statutory claims. Cf. Swierkiewicz v. Sorema N. A., 534 U. S. 506, 512–513 (2002); Leatherman, 507 U. S., at 168 (both recognizing that heightened pleading requirements can be established by Federal Rule, citing Fed. Rule Civ. Proc. 9(b), which requires that fraud or mistake be pleaded with particularity).[Footnote 9] Our decision in Fidelity & Deposit Co. of Md. v. United States, 187 U. S. 315 (1902), is instructive. That case concerned a rule adopted by the Supreme Court of the District of Columbia in 1879 pursuant to rulemaking power delegated by Congress. The rule required defendants, in certain contract actions, to file an affidavit “specifically stating … , in precise and distinct terms, the grounds of his defen[s]e.” Id., at 318 (internal quotation marks omitted). The defendant’s affidavit was found insufficient, and judgment was entered for the plaintiff, whose declaration and supporting affidavit had been found satisfactory. Ibid. This Court upheld the District’s rule against the contention that it violated the Seventh Amendment. Id., at 320. Just as the purpose of §21D(b) is to screen out frivolous complaints, the purpose of the prescription at issue in Fidelity & Deposit Co. was to “preserve the courts from frivolous defen[s]es,” ibid. Explaining why the Seventh Amendment was not implicated, this Court said that the heightened pleading rule simply “prescribes the means of making an issue,” and that, when “[t]he issue [was] made as prescribed, the right of trial by jury accrues.” Ibid.; accord Ex parte Peterson, 253 U. S. 300, 310 (1920) (Brandeis, J.) (citing Fidelity & Deposit Co., and reiterating: “It does not infringe the constitutional right to a trial by jury [in a civil case], to require, with a view to formulating the issues, an oath by each party to the facts relied upon.”). See also Walker v. New Mexico & Southern Pacific R. Co., 165 U. S. 593, 596 (1897) (Seventh Amendment “does not attempt to regulate matters of pleading”). In the instant case, provided that the Shareholders have satisfied the congressionally “prescribe[d] … means of making an issue,” Fidelity & Deposit Co., 187 U. S., at 320, the case will fall within the jury’s authority to assess the credibility of witnesses, resolve any genuine issues of fact, and make the ultimate determination whether Notebaert and, by imputation, Tellabs acted with scienter. We emphasize, as well, that under our construction of the “strong inference” standard, a plaintiff is not forced to plead more than she would be required to prove at trial. A plaintiff alleging fraud in a §10(b) action, we hold today, must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference. At trial, she must then prove her case by a “preponderance of the evidence.” Stated otherwise, she must demonstrate that it is more likely than not that the defendant acted with scienter. See Herman & MacLean v. Huddleston, 459 U. S. 375, 390 (1983). * * * While we reject the Seventh Circuit’s approach to §21D(b)(2), we do not decide whether, under the standard we have described, see supra, at 11–14, the Shareholders’ allegations warrant “a strong inference that [Notebaert and Tellabs] acted with the required state of mind,” 15 U. S. C. §78u–4(b)(2). Neither the District Court nor the Court of Appeals had the opportunity to consider the matter in light of the prescriptions we announce today. We therefore vacate the Seventh Circuit’s judgment so that the case may be reexamined in accord with our construction of §21D(b)(2). 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. Footnote 1 The Shareholders brought suit against Tellabs executives other than Notebaert, including Richard Birck, Tellabs’ chairman and former chief executive officer. Because the claims against the other executives, many of which have been dismissed, are not before us, we focus on the allegations as they relate to Notebaert. We refer to the defendant-petitioners collectively as “Tellabs.” Footnote 2 See, e.g., 437 F. 3d 588, 602 (CA7 2006) (decision below); In re Credit Suisse First Boston Corp., 431 F. 3d 36, 49, 51 (CA1 2005); Ottmann v. Hanger Orthopedic Group, Inc., 353 F. 3d 338, 347–349 (CA4 2003); Pirraglia v. Novell, Inc., 339 F. 3d 1182, 1187–1188 (CA10 2003); Gompper v. VISX, Inc., 298 F. 3d 893, 896–897 (CA9 2002); Helwig v. Vencor, Inc., 251 F. 3d 540, 553 (CA6 2001) (en banc). Footnote 3 We have previously reserved the question whether reckless behavior is sufficient for civil liability under §10(b) and Rule 10b–5. See Ernst & Ernst v. Hochfelder, 425 U. S. 185, 194, n. 12 (1976). Every Court of Appeals that has considered the issue has held that a plaintiff may meet the scienter requirement by showing that the defendant acted intentionally or recklessly, though the Circuits differ on the degree of recklessness required. See Ottmann, 353 F. 3d, at 343 (collecting cases). The question whether and when recklessness satisfies the scienter requirement is not presented in this case. Footnote 4 Nothing in the Act, we have previously noted, casts doubt on the conclusion “that private securities litigation [i]s an indispensable tool with which defrauded investors can recover their losses”—a matter crucial to the integrity of domestic capital markets. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 81 (2006) (internal quotation marks omitted). Footnote 5 Justice Scalia objects to this standard on the ground that “[i]f a jade falcon were stolen from a room to which only A and B had access,” it could not “possibly be said there was a ‘strong inference’ that B was the thief.” Post, at 1 (opinion concurring in judgment) (emphasis in original). I suspect, however, that law enforcement officials as well as the owner of the precious falcon would find the inference of guilt as to B quite strong—certainly strong enough to warrant further investigation. Indeed, an inference at least as likely as competing inferences can, in some cases, warrant recovery. See Summers v. Tice, 33 Cal. 2d 80, 84–87, 199 P. 2d 1, 3–5 (1948) (in bank) (plaintiff wounded by gunshot could recover from two defendants, even though the most he could prove was that each defendant was at least as likely to have injured him as the other); Restatement (Third) of Torts §28(b), Comment e, p. 504 (Proposed Final Draft No. 1, Apr. 6, 2005) (“Since the publication of the Second Restatement in 1965, courts have generally accepted the alternative-liability principle of [Summers v. Tice, adopted in] §433B(3), while fleshing out its limits.”). In any event, we disagree with Justice Scalia that the hardly stock term “strong inference” has only one invariably right (“natural” or “normal”) reading—his. See post, at 3. Justice Alito agrees with Justice Scalia, and would transpose to the pleading stage “the test that is used at the summary-judgment and judgment-as-a-matter-of-law stages.” Post, at 3 (opinion concurring in judgment). But the test at each stage is measured against a different backdrop. It is improbable that Congress, without so stating, intended courts to test pleadings, unaided by discovery, to determine whether there is “no genuine issue as to any material fact.” See Fed. Rule Civ. Proc. 56(c). And judgment as a matter of law is a post-trial device, turning on the question whether a party has produced evidence “legally sufficient” to warrant a jury determination in that party’s favor. See Rule 50(a)(1). Footnote 6 The Seventh Circuit held that allegations of scienter made against one defendant cannot be imputed to all other individual defendants. 437 F. 3d, at 602–603. See also id., at 603 (to proceed beyond the pleading stage, the plaintiff must allege as to each defendant facts sufficient to demonstrate a culpable state of mind regarding his or her violations) (citing Phillips v. Scientific-Atlanta, Inc., 374 F. 3d 1015, 1018 (CA11 2004)). Though there is disagreement among the Circuits as to whether the group pleading doctrine survived the PSLRA, see, e.g., Southland Securities Corp. v. Inspire Ins. Solutions Inc., 365 F. 3d 353, 364 (CA5 2004), the Shareholders do not contest the Seventh Circuit’s determination, and we do not disturb it. Footnote 7 The Seventh Circuit raised the possibility of a Seventh Amendment problem on its own initiative. The Shareholders did not contend below that dismissal of their complaint under §21D(b)(2) would violate their right to trial by jury. Cf. Monroe Employees Retirement System v. Bridgestone Corp., 399 F. 3d 651, 683, n. 25 (CA6 2005) (noting possible Seventh Amendment argument but declining to address it when not raised by plaintiffs). Footnote 8 In numerous contexts, gatekeeping judicial determinations prevent submission of claims to a jury’s judgment without violating the Seventh Amendment. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993) (expert testimony can be excluded based on judicial determination of reliability); Neely v. Martin K. Eby Constr. Co., 386 U. S. 317, 321 (1967) (judgment as a matter of law); Pease v. Rathbun-Jones Engineering Co., 243 U. S. 273, 278 (1917) (summary judgment). Footnote 9 Any heightened pleading rule, including Fed. Rule Civ. Proc. 9(b), could have the effect of preventing a plaintiff from getting discovery on a claim that might have gone to a jury, had discovery occurred and yielded substantial evidence. In recognizing Congress’ or the Federal Rule makers’ authority to adopt special pleading rules, we have detected no Seventh Amendment impediment.
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551.US.291
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Petitioner association (TSSAA) regulates interscholastic sports among its members, Tennessee public and private high schools. TSSAA sanctioned respondent (Brentwood), one of those private schools, because its football coach sent eighth-grade boys a letter that violated TSSAA’s rule prohibiting members from using “undue influence” in recruiting middle school students for their athletic programs. Following internal TSSAA review, Brentwood sued TSSAA and its executive director under 42 U. S. C. §1983, claiming, inter alia, that enforcement of the antirecruiting rule was state action violative of the First and Fourteenth Amendments and that TSSAA’s flawed adjudication of its appeal deprived Brentwood of due process. The District Court granted Brentwood relief, but the Sixth Circuit reversed, holding that TSSAA was a private voluntary association that did not act under color of state law. This Court reversed that determination, Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U. S. 288, and the District Court again ruled for Brentwood on remand. The Sixth Circuit affirmed, holding that the antirecruiting rule is a content-based regulation of speech that is not narrowly tailored to serve its permissible purposes and that the TSSAA board improperly considered ex parte evidence, thereby violating Brentwood’s due process rights. Held: The judgment is reversed, and the case is remanded. 442 F. 3d 410, reversed and remanded. Justice Stevens delivered the opinion of the Court with respect to Parts I, II–B, III, and IV, concluding: 1. Enforcing a rule that prohibits high school coaches from recruiting middle school athletes does not violate the First Amendment. Brentwood made a voluntary decision to join TSSAA and to abide by its antirecruiting rule. See 531 U. S., at 291. An athletic league’s interest in enforcing its rules may warrant curtailing the speech of its voluntary participants. See, e.g., Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568. TSSAA does not have unbounded authority to condition membership on the relinquishment of constitutional rights, see Garcetti v. Ceballos, 547 U. S. ___, ___, and can impose only those conditions that are necessary to managing an efficient and effective state-sponsored high school athletic league. That necessity is obviously present here. No empirical data is needed to credit TSSAA’s commonsense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics. TSSAA’s rule discourages precisely the sort of conduct that might lead to those harms, any one of which would detract from a high school sports league’s ability to operate “efficiently and effectively.” Garcetti, 547 U. S., at ___. Pp. 7–8. 2. TSSAA did not violate Brentwood’s due process rights. The sanction decision was preceded by an investigation, several meetings, correspondence, the TSSAA executive director’s adverse written determination, a hearing before the director and an advisory panel, and a de novo review by the entire TSSAA board. During the investigation, Brentwood was notified of all the charges against it. At each of the hearings, it was represented by counsel and given the opportunity to adduce evidence, none of which was excluded. The Court rejects Brentwood’s argument that its due process rights were nevertheless violated when the full TSSAA board, acting ex parte, heard from investigators and other witnesses and considered the investigators’ notes and other evidence concerning a separate incident in which a basketball coach named King, who was not a Brentwood employee, pushed a middle school basketball star to attend Brentwood. Even accepting the questionable holding that TSSAA’s closed-door deliberations were unconstitutional, any due process violation was harmless beyond a reasonable doubt. It is unlikely the King allegations increased the severity of the penalties leveled against Brentwood. More importantly, Brentwood’s prejudice claim rests on the unsupported premise that it would have adopted a different and more effective strategy at the board hearing had it been given an opportunity to cross-examine the investigators and review their notes. Brentwood has identified nothing the investigators shared with the Board that Brentwood did not already know. Pp. 8–12. Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III, and IV, in which Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ., joined, and an opinion with respect to Part II–A, in which Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Roberts, C. J., and Scalia, and Alito, JJ., joined. Thomas, J., filed an opinion concurring in the judgment.
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of the Court with respect to Parts I, II–B, III, and IV, and an opinion with respect to Part II–A, in which Justice Souter, Justice Ginsburg, and Justice Breyer join. The principal issue before us is whether the enforcement of a rule prohibiting high school coaches from recruiting middle school athletes violates the First Amendment. We also must decide whether the sanction imposed on respondent for violating that rule was preceded by a fair hearing. I Although this case has had a long history, the relevant facts may be stated briefly. The Tennessee Secondary School Athletic Association (TSSAA) is a not-for-profit membership corporation organized to regulate interscholastic sports among its members, which include some 290 public and 55 private high schools in Tennessee. Brentwood Academy is one of those private schools. Since the early 1950’s, TSSAA has prohibited high schools from using “undue influence” in recruiting middle school students for their athletic programs. In April 1997, Brentwood’s football coach sent a letter to a group of eighth-grade boys inviting them to attend spring practice sessions. See App. 119. The letter explained that football equipment would be distributed and that “getting involved as soon as possible would definitely be to your advantage.” Ibid. It was signed “Your Coach.” Ibid. While the boys who received the letter had signed a contract signaling their intent to attend Brentwood, none had enrolled within the meaning of TSSAA rules. See id., at 182 (defining “enrolled” as having “attended 3 days of school”). All of the boys attended at least some of the spring practice sessions. As the case comes to us, it is settled that the coach’s pre-enrollment solicitation violated the TSSAA’s anti-recruiting rule and that he had ample notice that his conduct was prohibited. TSSAA accordingly sanctioned Brentwood. After proceeding through two layers of internal TSSAA review, Brentwood brought this action against TSSAA and its executive director in federal court under 42 U. S. C. §1983. As relevant here, Brentwood made two claims: first, that enforcement of the rule was state action in violation of the First and Fourteenth Amendments; and second, that TSSAA’s flawed adjudication of its appeal had deprived the school of due process of law. The District Court granted relief to Brentwood, but the Court of Appeals reversed, holding that TSSAA was a private voluntary association that did not act under color of state law. We granted certiorari and reversed, holding that the District Court was correct on the threshold issue. Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U. S. 288 (2001). On remand, the Sixth Circuit sent the case back to the District Court, which once again ruled for Brentwood. 304 F. Supp. 2d 981 (MD Tenn. 2003). TSSAA appealed, and the Court of Appeals affirmed over one judge’s dissent. 442 F. 3d 410 (2006). The majority held that the anti-recruiting rule is a content-based regulation of speech that is not narrowly tailored to serve its permissible purposes. Id., at 420–431. It also concluded that the TSSAA Board improperly considered ex parte evidence during its deliberations, thereby violating Brentwood’s due process rights. Id., at 433–438. We again granted certiorari, 549 U. S. ___ (2007), and we again reverse. II The First Amendment protects Brentwood’s right to publish truthful information about the school and its athletic programs. It likewise protects the school’s right to try to persuade prospective students and their parents that its excellence in sports is a reason for enrolling. But Brentwood’s speech rights are not absolute. It chose to join TSSAA, an athletic league and a state actor invested with a three-fold obligation to prevent the exploitation of children, to ensure that high school athletics remain secondary to academics, and to promote fair competition among its members. TSSAA submits that these interests adequately support the enforcement against its member schools of a rule prohibiting coaches from trying to recruit impressionable middle school athletes. Brentwood disagrees, and maintains that TSSAA’s asserted interests are too flimsy and its rule too broad to support what the school views as a serious curtailment of its constitutional rights. Two aspects of the case taken together persuade us that TSSAA should prevail. A The anti-recruiting rule strikes nowhere near the heart of the First Amendment. TSSAA has not banned the dissemination of truthful information relating to sports, nor has it claimed that it could. Cf. Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976) (striking down a prohibition on advertising prices for prescription drugs). It has only prevented its member schools’ coaches from recruiting individual middle school students. Our cases teach that there is a difference of constitutional dimension between rules prohibiting appeals to the public at large, see 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 495–500 (1996), and rules prohibiting direct, personalized communication in a coercive setting. Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), nicely illustrates the point. In Ohralik, we considered whether the First Amendment disabled a state bar association from disciplining a lawyer for the in-person solicitation of clients. The lawyer argued that under our decision in Bates v. State Bar of Ariz., 433 U. S. 350, 384 (1977), which invalidated on First Amendment grounds a ban on truthful advertising relating to the “availability and terms of routine legal services,” his solicitation was protected speech. We rejected the lawyer’s argument, holding that the “in-person solicitation of professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services, let alone with forms of speech more traditionally within the concern of the First Amendment.” 436 U. S., at 455. We reasoned that the solicitation ban was more akin to a conduct regulation than a speech restriction: “ ‘[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’ Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers’ threats of retaliation for the labor activities of employees … . Each of these examples illustrates that the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.” Id., at 456 (citations omitted). Drawing on these examples, we found that the “[i]n-person solicitation by a lawyer of remunerative employment is a business transaction in which speech is an essential but subordinate component,” id., at 457, the prohibition of which raised few (if any) First Amendment problems. Ohralik identified several evils associated with direct solicitation distinct from the harms presented by conventional commercial speech. Direct solicitation “may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection,” ibid.; its goal “may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking,” ibid.; and it short circuits the “opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual,” ibid. For these reasons, we concluded that in-person solicitation “actually may disserve the individual and societal interest, identified in Bates, in facilitating ‘informed and reliable decisionmaking.’ ” Id., at 458 (quoting Bates, 433 U. S., at 364). We have since emphasized that Ohralik’s “narrow” holding is limited to conduct that is “ ‘inherently conducive to overreaching and other forms of misconduct.’ ” Edenfield v. Fane, 507 U. S. 761, 774 (1993) (quoting Ohralik, 436 U. S., at 464); see also Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 641 (1985) (emphasizing that Ohralik involved a “practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud”). And we have not been chary of invalidating state restrictions on solicitation and commercial advertising in the absence of the acute risks associated with in-person legal solicitation. See Edenfield, 507 U. S., at 775 (striking down a restriction on in-person solicitation by accountants because such solicitation “poses none of the same dangers” identified in Ohralik); Zauderer, 471 U. S., at 639–647 (invalidating a restriction on truthful, nondeceptive legal advertising directed at people with specific legal problems); Shapero v. Kentucky Bar Assn., 486 U. S. 466, 472–478 (1988) (overturning a blanket proscription on all forms of legal solicitation). In our view, however, the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader. After all, it is a heady thing for an eighth-grade student to be contacted directly by a coach—here, “Your Coach”—and invited to join a high school sports team. In too many cases, the invitation will come accompanied with a suggestion, subtle or otherwise, that failure to accept will hurt the student’s chances to play high school sports and diminish the odds that she could continue on to college or (dream of dreams) professional sports. Cf. App. 119 (“I do feel that getting involved as soon as possible would definitely be to your advantage”).[Footnote 1] Such a potent entreaty, playing as it does on youthful hopes and fears, could well exert the kind of undue pressure that “disserve[s] the individual and societal interest … in facilitating ‘informed and reliable decisionmaking.’ ” Ohralik, 436 U. S., at 458. Given that TSSAA member schools remain free to send brochures, post billboards, and otherwise advertise their athletic programs, TSSAA’s limited regulation of recruiting conduct poses no significant First Amendment concerns. B Brentwood made a voluntary decision to join TSSAA and to abide by its antirecruiting rule. See Brentwood, 531 U. S., at 291 (“No school is forced to join”); cf. Grove City College v. Bell, 465 U. S. 555, 575 (1984). Just as the government’s interest in running an effective workplace can in some circumstances outweigh employee speech rights, see Connick v. Myers, 461 U. S. 138 (1983), so too can an athletic league’s interest in enforcing its rules sometimes warrant curtailing the speech of its voluntary participants. See Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) (holding that the scope of a government employee’s First Amendment rights depends on the “balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”); see also Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 679 (1996) (“eschew[ing]” a formal approach to determining which contractual relationships call for the application of Pickering balancing). This is not to say that TSSAA has unbounded authority to condition membership on the relinquishment of any and all constitutional rights. As we recently emphasized in the employment context, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti v. Ceballos, 547 U. S. ___, ___ (2006) (slip op., at 7). Assuming, without deciding, that the coach in this case was “speaking as [a] citize[n] about matters of public concern,” ibid., TSSAA can similarly impose only those conditions on such speech that are necessary to managing an efficient and effective state-sponsored high school athletic league. That necessity is obviously present here. We need no empirical data to credit TSSAA’s common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics. See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 60 (1973). TSSAA’s rule discourages precisely the sort of conduct that might lead to those harms, any one of which would detract from a high school sports league’s ability to operate “efficiently and effectively.” Garcetti, 547 U. S., at ___ (slip op., at 7). For that reason, the First Amendment does not excuse Brentwood from abiding by the same anti-recruiting rule that governs the conduct of its sister schools. To hold otherwise would undermine the principle, succinctly articulated by the dissenting judge at the Court of Appeals, that “[h]igh school football is a game. Games have rules.” 442 F. 3d, at 444 (opinion of Rogers, J.). It is only fair that Brentwood follow them. III The decision to sanction Brentwood for engaging in prohibited recruiting was preceded by an investigation, several meetings, exchanges of correspondence, see App. 120–123 (fax from Brentwood’s coach to TSSAA’s executive director), id., at 124–127 (memorandum from director to Brentwood’s headmaster), id., at 128–133 (letter from the headmaster responding to the director’s memorandum), id., at 204–211 (letter from TSSAA director to headmaster with further questions); id., at 212–229 (responsive letter from Brentwood’s headmaster), an adverse written determination from TSSAA’s executive director, id., at 238–244, a hearing before the director and an advisory panel composed of three members of TSSAA’s Board of Control, see id., at 254–258, and finally a de novo review by the entire TSSAA Board of Directors, see id., at 269–271. During the investigation, Brentwood was notified of all the charges against it. At each of the two hearings, Brentwood was represented by counsel and given the opportunity to adduce evidence. No evidence offered by Brentwood was excluded. Brentwood nevertheless maintains that its due process rights were violated when the full TSSAA board, during its deliberations, heard from witnesses and considered evidence that the school had no opportunity to respond to. Some background is necessary to understand the claim. One of the matters under investigation was whether an Amateur Athletic Union basketball coach named Bart King had pushed talented middle school students—including a basketball star named Jacques Curry—to attend Brentwood. See, e.g., id., at 220, 222 (letter from Brentwood’s headmaster discussing the allegation that King had told Curry that if he attended Brentwood, he “would probably have a car when he is in the tenth grade”). Brentwood consistently maintained that King had no affiliation with the school and no authority to act on its behalf. See, e.g., id., at 221–222. Nevertheless, the initial decision by TSSAA’s executive director, as well as the subsequent decision by the director and the advisory panel, declared Curry (as well as several other players) ineligible to play for Brentwood. See id., at 243 (blanket ineligibility), 255 (ineligibility for varsity sports). As it had in earlier stages of the case, in Brentwood’s final appeal to the TSSAA Board, the school offered live testimony from Curry and an affidavit from King denying the alleged recruiting violations. See id., at 264–267 (Curry’s testimony); id., at 261 (listing “Affidavit of Bart King” as an exhibit).[Footnote 2] Once Curry had testified, Brentwood’s counsel advised the board that King was available to answer any questions, but did not call him as a witness.[Footnote 3] After reviewing the evidence, the board found that Brentwood had committed three specific violations of its rules, none of which appeared to involve either King or Curry, and it reinstated Curry’s eligibility. Id., at 269–271. As a penalty for the three violations, the board put Brentwood’s athletic program on probation for four years, excluded the boys’ basketball and football teams from tournament playoffs for two years, and imposed a $3,000 fine. Id., at 270. During its deliberations, the board discussed the case with the executive director who had presided at the earlier proceedings and two TSSAA investigators, none of whom had been cross-examined. The investigators also provided handwritten notes to the board detailing their investigations; Brentwood never received those notes. The District Court found that the consideration of the ex parte evidence influenced the board’s penalty decision and contravened the Due Process Clause. 304 F. Supp. 2d, at 1003–1006. The Court of Appeals accepted that finding, as well as the conclusion that the evidence tainted the fairness of the proceeding. 442 F. 3d, at 433–438. TSSAA now maintains that the lower courts erred. We agree. Even accepting the questionable holding that TSSAA’s closed-door deliberations were unconstitutional, we can safely conclude that any due process violation was harmless beyond a reasonable doubt. To begin with, it is hard to believe that the King allegations increased the severity of the penalties leveled against Brentwood.[Footnote 4] But more importantly, Brentwood’s claim of prejudice rests on the unsupported premise that it would have adopted a different and more effective strategy at the board hearing had it been given an opportunity to cross-examine the investigators and review their notes. Despite having had nearly a decade since the hearing to undertake that cross-examination and review, Brentwood has identified nothing the investigators shared with the board that Brentwood did not already know.[Footnote 5] Perhaps that is why Brentwood never explains what a more effective strategy might have looked like. Brentwood obliquely suggests it might have had King testify at the hearing, but it gives no inkling of what his testimony would have added to the proceedings. We are not inclined to speculate on its behalf. IV We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 When asked at trial about this language from the offending letter, the Brentwood football coach acknowledged that “[i]n some cases” the middle school student is “not going to think that’s optional.” App. 301. Footnote 2 The District Court’s conclusion that “[t]here was no indication from the TSSAA before the final hearing … that the organization was still considering the Bart King allegations” is clearly erroneous. 304 F. Supp. 2d 981, 1004, n. 29 (MD Tenn. 2003); see also 442 F. 3d 410, 435, and n. 20 (CA6 2006) (affirming finding). Brentwood appealed to the full board in part to overturn the ineligibility sanction that had been leveled against Curry and several other players. See App. 255. Because the only justification for declaring Curry ineligible was that King had improperly recruited him to play for Brentwood, the King allegations were obviously at issue. Brentwood understood as much. It otherwise would have been wasted effort for King to submit an affidavit and for Curry to testify. Similarly, given that Curry testified in some detail about his relationship with King, id., at 264–267, the Court of Appeals incorrectly concluded that the discussion of King was limited to a brief exchange about whether King would testify. See 442 F. 3d, at 435 (“Evidently this was the only discussion of King at the hearing”). Footnote 3 “[Brentwood’s lawyer]: Any other questions? That’s going to be it for our proof. If I could make just a few concluding remarks. “By the way, we have Bart King here to answer any questions. And it was our intention to put him on, but I don’t know if you all are interested in extending for five minutes to hear from Bart King or not. He’s here if you want him. “[TSSAA’s Executive Director]: No. “[Brentwood’s lawyer]: No. All right.” App. 267. Footnote 4 At trial, a board member testified that the board “dropped” the charges relating to King, id., at 347 (testimony of Michael Hammond), which explains why the board restored Curry’s eligibility. The fine, the probationary period, and the playoff suspension had all been imposed at earlier stages of the proceedings, see id., at 243, 255, suggesting that the board was as a practical matter just affirming penalties associated with the remaining recruiting violations. The King allegations appear to have played a negligible role in choosing which penalties to assess. The District Court drew its contrary conclusion from a single piece of evidence: the board president’s affirmative response during a deposition to a question about whether the King allegations supported the board’s finding that the recruiting rule had been violated. 442 F. 3d, at 435–436. As the board president clarified at trial, however, while the King allegations were a “ ‘factor’ ” in the board’s discussions, the “ ‘final penalty did not involve Bart King … . [T]he final penalty really dealt with the letter from Mr. Flatt.’ ” Id., at 436. Thinking it a close call, ibid. (“Whether the King issue was actually a factor in the penalties ultimately imposed is far less certain”), the Court of Appeals held that the District Court could credit the board president’s deposition testimony over his subsequent qualification of that testimony. We agree with the dissenting judge below that “so slender an evidentiary reed” cannot support the conclusion that TSSAA violated Brentwood’s procedural rights. Id., at 454 (opinion of Rogers, J.). Footnote 5 Nor has our independent review of the investigators’ notes unearthed any allegation of misconduct that would have been new to Brentwood. See XV App. in No. 03–5245 etc. (CA 2006), pp. 4178–4193.
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549.US.443
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After respondent (PG&E) filed for Chapter 11 bankruptcy, petitioner (Travelers), which had previously issued a surety bond to guarantee PG&E’s payment of state workers’ compensation benefits, asserted a claim in the bankruptcy action to protect itself should PG&E default on the benefits. With the Bankruptcy Court’s approval, PG&E agreed to insert language into its reorganization plan and disclosure statement to protect Travelers in case of such a default. Additional litigation over the negotiated language nevertheless ensued and was ultimately resolved by a court-approved stipulation stating, inter alia, that Travelers could assert a general unsecured claim for attorney’s fees, which were authorized in the parties’ original indemnity agreements. When Travelers filed an amended claim for such fees, PG&E objected based on the rule the Ninth Circuit adopted in its prior Fobian decision that where the litigated issues involve not basic contract enforcement questions, but issues peculiar to federal bankruptcy law, attorney’s fees generally will not be awarded. The Bankruptcy Court rejected Travelers’ claim on that basis, and the District Court and the Ninth Circuit affirmed. Held: 1. Federal bankruptcy law does not disallow contract-based claims for attorney’s fees based solely on the fact that the fees were incurred litigating bankruptcy law issues. Because the Fobian rule finds no support in federal bankruptcy law, the Ninth Circuit erred in disallowing Travelers’ claim. Pp. 4–12. (a) The American rule that “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser,” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247, may be overcome by, inter alia, an “enforceable contract” allocating such fees, Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717. A contract allocating attorney’s fees that is enforceable under substantive, nonbankruptcy law is allowable in bankruptcy except where the Bankruptcy Code provides otherwise. Cf. Security Mortgage Co. v. Powers, 278 U. S. 149, 154. The Code does not do so here. Pp. 4–5. (b) Under the Bankruptcy Code, the bankruptcy court “shall allow” a creditor’s claim “except to the extent that” the claim implicates any of nine enumerated exceptions. 11 U. S. C. §502(b). Because Travelers’ attorney’s fees claim has nothing to do with the exceptions set forth in §§502(b)(2)–(9), it must be allowed unless it is unenforceable under §502(b)(1), which disallows any claim that is “unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured.” Pp. 5–6. (c) Section 502(b)(1) is most naturally understood to provide that, with limited exceptions, any defense to a claim that is available outside of the bankruptcy context is also available in bankruptcy. This reading is consistent not only with the plain statutory text, but also with the settled principle that “[c]reditors’ entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor’s obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code.” Raleigh v. Illinois Dept. of Revenue, 530 U. S. 15, 20. That principle requires bankruptcy courts to consult state law in determining the validity of most claims. See ibid. Thus, when the Code uses the word “claim”—i.e., a “right to payment,” §101(5)(A)—it is usually referring to a right to payment recognized under state law, “[u]nless some federal interest requires a different result,” Butner v. United States, 440 U. S. 48, 55. Pp. 6–7. (d) The Fobian rule finds no support in §502 or elsewhere in federal bankruptcy law. The Fobian court did not identify any Code provision as presenting such support, but instead cited three of its own prior decisions, none of which identified any basis for disallowing a contractual claim for attorney’s fees. Nor did the court have occasion to do so; in each of those cases, the attorney’s fees claim failed as a matter of state law. The absence of such textual support is fatal for the Fobian rule. See FCC v. NextWave Personal Communications Inc., 537 U. S. 293, 302. In light of §502(b)(1)’s broad, permissive scope, and the Court’s prior recognition that “the character of [a contractual] obligation to pay attorney’s fees presents no obstacle to enforcing it in bankruptcy,” it necessarily follows that the Fobian rule cannot stand. Security Mortgage, supra, at 154. Pp. 7–10. 2. The Court expresses no opinion as to PG&E’s arguments that unsecured claims for contractual attorney’s fees, such as Travelers’, are categorically disallowed by §506(b), which expressly authorizes such fees “[t]o the extent that an allowed secured claim is secured by property [whose] value [exceeds] the amount of such claim,” and that such disallowance is confirmed by the Bankruptcy Code’s structure and purpose, as examined against the backdrop of pre-Code bankruptcy law. The Court ordinarily does not consider arguments, such as these, that were neither raised nor addressed below, Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 168–169, and PG&E has not identified any circumstances warranting an exception to that rule here. PG&E’s insistence that its arguments are “fairly included” within the question presented in the certiorari petition is not persuasive. Pp. 10–12. 167 Fed. Appx. 593, vacated and remanded. Alito, J., delivered the opinion for a unanimous Court.
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We are asked to consider whether federal bankruptcy law precludes an unsecured creditor from recovering attorney’s fees authorized by a prepetition contract and incurred in postpetition litigation. The Court of Appeals for the Ninth Circuit held, based on a rule previously adopted by that court, that such fees are categorically prohibited—even where the contractual allocation of attorney’s fees would be enforceable under applicable nonbankruptcy law—to the extent the litigation involves issues of federal bankruptcy law. Because that rule finds no support in the Bankruptcy Code, we vacate and remand. I Respondent Pacific Gas and Electric Company (PG&E) filed a voluntary Chapter 11 bankruptcy petition in April 2001, 11 U. S. C. §1101 et seq., and continued thereafter to operate its business as a “debtor in possession.” §§1107(a), 1108. The bankruptcy filing caught the attention of petitioner Travelers Casualty & Surety Company (Travelers), which had previously issued a $100 million surety bond on PG&E’s behalf to the California Department of Industrial Relations, guaranteeing PG&E’s payment of state workers’ compensation benefits to injured employees.[Footnote 1] In connection with the bond, PG&E executed a series of indemnity agreements in favor of Travelers. The indemnity agreements provide that PG&E will be responsible for any loss Travelers might incur in connection with the bonds, including any attorney’s fees incurred in pursuing, protecting, or litigating Travelers’ rights in connection with those bonds. Although no default occurred, Travelers asserted a claim in the bankruptcy action to protect itself in case PG&E defaulted on its workers’ compensation benefits at some point in the future, requiring Travelers to make payments under its bond. In response to Travelers’ claim, and with the knowledge and approval of the Bankruptcy Court, PG&E agreed to insert language into its reorganization plan and disclosure statement to protect Travelers’ right to indemnity and subrogation in the event of a default by PG&E. Travelers claims, however, that PG&E then unilaterally altered the negotiated language in a way that substantially diminished the protection it had been seeking. According to Travelers, that development resulted in additional litigation, but Travelers and PG&E ultimately resolved the dispute by entering into a stipulation that was later approved by the Bankruptcy Court. In addition to accommodating Travelers’ substantive concerns, the stipulation stated that Travelers “may assert its claim for attorneys’ fees under the [i]ndemnity [a]greements” (subject to PG&E’s right to object) as a general unsecured claim against PG&E. Brief for Petitioner 17. Travelers subsequently filed an amended proof of claim seeking to recover the attorney’s fees it incurred in connection with PG&E’s bankruptcy proceedings. PG&E objected, arguing that Travelers could not recover attorney’s fees incurred while litigating issues of bankruptcy law. The Bankruptcy Court agreed and rejected Travelers’ claim on that basis. App. to Pet. for Cert. 23a–25a. Travelers appealed that ruling to the District Court. The District Court affirmed, relying on In re Fobian, 951 F. 2d 1149 (CA9 1991), which held that “where the litigated issues involve not basic contract enforcement questions, but issues peculiar to federal bankruptcy law, attorney’s fees will not be awarded absent bad faith or harassment by the losing party,” id., at 1153. See App. to Pet. for Cert. 10a, 17a. Travelers appealed again, and the United States Court of Appeals for the Ninth Circuit affirmed. 167 Fed. Appx. 593 (2006). The panel acknowledged that, in at least some circumstances, a “ ‘prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law . . . .’ ” Id., at 594 (quoting In re Baroff, 105 F. 3d 439, 441 (CA9 1997)). The panel nevertheless rejected Travelers’ claim based on the Fobian rule, which it cited for the proposition that “attorney fees are not recoverable in bankruptcy for litigating issues ‘peculiar to federal bankruptcy law.’ ” 167 Fed. Appx., at 594 (quoting Fobian, supra, at 1153). The panel explained that, because the fees claimed by Travelers were incurred litigating issues that were “governed entirely by federal bankruptcy law,” Travelers’ claim necessarily failed.[Footnote 2] 167 Fed. Appx., at 594. Travelers sought review in this Court, noting a conflict among the Courts of Appeals regarding the validity of the Fobian rule. Compare Fobian, supra, at 1153, with In re Shangra-La, Inc., 167 F. 3d 843, 848–849 (CA4 1999). We granted certiorari to resolve that conflict, 549 U. S. ___ (2006). II Under the American Rule, “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975); see Hauenstein v. Lynham, 100 U. S. 483, 490–491 (1880); Arcambel v. Wiseman, 3 Dall. 306 (1796). This default rule can, of course, be overcome by statute. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717 (1967). It can also be overcome by an “enforceable contract” allocating attorney’s fees. Ibid. In a case governed by the Bankruptcy Act of 1898, we observed that “[t]he character of [a contractual] obligation to pay attorney’s fees presents no obstacle to enforcing it in bankruptcy, either as a provable claim or by way of a lien upon specific property.” Security Mortgage Co. v. Powers, 278 U. S. 149, 154 (1928). Similarly, under the terms of the current Bankruptcy Code, it remains true that an otherwise enforceable contract allocating attorney’s fees (i.e., one that is enforceable under substantive, nonbankruptcy law) is allowable in bankruptcy except where the Bankruptcy Code provides otherwise. See 4 Collier on Bankruptcy ¶ 506.04[3][a], p. 506–118 (rev. 15th ed. 2006) (hereinafter Collier). This case requires us to consider whether the Bankruptcy Code disallows contract-based claims for attorney’s fees based solely on the fact that the fees at issue were incurred litigating issues of bankruptcy law. We conclude that it does not. A When a debtor declares bankruptcy, each of its creditors is entitled to file a proof of claim—i.e., a document providing proof of a “right to payment,” 11 U. S. C. §101(5)(A)—against the debtor’s estate. Once a proof of claim has been filed, the court must determine whether the claim is “allowed” under §502(a) of the Bankruptcy Code: “A claim or interest, proof of which is filed under section 501 . . . is deemed allowed, unless a party in interest . . . objects.” But even where a party in interest objects, the court “shall allow” the claim “except to the extent that” the claim implicates any of the nine exceptions enumerated in §502(b). Ibid. Those exceptions apply where the claim at issue is “unenforceable against the debtor … under any agreement or applicable law,” §502(b)(1); “is for unmatured interest,” §502(b)(2); “is for [property tax that] exceeds the value of the [estate’s] interest” in the property, §502(b)(3); “is for services of an insider or attorney of the debtor” and “exceeds the reasonable value of such services,” §502(b)(4); is for unmatured debt on certain alimony and child support obligations, §502(b)(5); is for certain “damages resulting from the termination” of a lease or employment contract, §§502(b)(6) and (7); “results from a reduction, due to late payment, in the amount of … credit available to the debtor in connection with an employment tax on wages, salaries, or commissions earned from the debtor,” §502(b)(8); or was brought to the court’s attention through an untimely proof of claim, §502(b)(9). Travelers’ claim for attorney’s fees has nothing to do with property tax, child support or alimony, services provided by an attorney of the debtor, damages resulting from the termination of a lease or employment contract, or the late payment of any employment tax. See §§502(b)(2)–(8). Nor does it appear that the proof of claim was untimely. See §502(b)(9). Thus, Travelers’ claim must be allowed under §502(b) unless it is unenforceable within the meaning of §502(b)(1). B Section 502(b)(1) disallows any claim that is “unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured.” This provision is most naturally understood to provide that, with limited exceptions, any defense to a claim that is available outside of the bankruptcy context is also available in bankruptcy. See 4 Collier ¶ 502.03[2][b], at 502–22 (explaining that §502(b)(1) is generally understood to “make available to the trustee any defense” available to the debtor “under applicable nonbankruptcy law”—i.e., any defense that the debtor “could have interposed, absent bankruptcy, in a suit on the [same substantive] claim by the creditor”). This reading of §502(b)(1) is consistent not only with the plain statutory text, but also with the settled principle that “[c]reditors’ entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor’s obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code.” Raleigh v. Illinois Dept. of Revenue, 530 U. S. 15, 20 (2000). That principle requires bankruptcy courts to consult state law in determining the validity of most claims. See ibid. Indeed, we have long recognized that the “ ‘basic federal rule’ in bankruptcy is that state law governs the substance of claims, Congress having ‘generally left the determination of property rights in the assets of a bankrupt’s estate to state law.’ ” Ibid. (quoting Butner v. United States, 440 U. S. 48, 57, 54 (1979); citation omitted). Accordingly, when the Bankruptcy Code uses the word “claim”—which the Code itself defines as a “right to payment,” 11 U. S. C. §101(5)(A)—it is usually referring to a right to payment recognized under state law. As we stated in Butner, “[p]roperty interests are created and defined by state law,” and “[u]nless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.” 440 U. S., at 55; accord, Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156, 161 (1946) (“What claims of creditors are valid and subsisting obligations against the bankrupt at the time a petition in bankruptcy is filed is a question which, in the absence of overruling federal law, is to be determined by reference to state law”). C In rejecting Travelers’ claim for contractual attorney’s fees, the Court of Appeals did not conclude that the claim was “unenforceable” under §502(b)(1) as a matter of applicable nonbankruptcy law. Nor did it conclude that Travelers’ claim was rendered unenforceable by any provision of the Bankruptcy Code. To the contrary, the court acknowledged that, in at least some circumstances, a “ ‘prevailing party in a bankruptcy proceeding may be entitled to an award of attorney fees in accordance with applicable state law . . . .’ ” 167 Fed. Appx., at 594 (quoting Baroff, 105 F. 3d, at 441). The court nevertheless rejected Travelers’ claim based solely on a rule of that court’s own creation—the so-called Fobian rule—which dictates that “attorney fees are not recoverable in bankruptcy for litigating issues ‘peculiar to federal bankruptcy law.’ ” 167 Fed. Appx., at 594 (quoting Fobian, 951 F. 2d, at 1153). The court explained that, because the fees claimed by Travelers were incurred litigating issues that were “governed entirely by federal bankruptcy law,” 167 Fed. Appx., at 594, Travelers’ claim necessarily failed. The Fobian rule finds no support in the Bankruptcy Code, either in §502 or elsewhere. In Fobian, the court did not identify any provision of the Bankruptcy Code as providing support for the new rule. See 951 F. 2d, at 1153. Instead, the court cited three of its own prior decisions, In re Johnson, 756 F. 2d 738 (1985); In re Coast Trading Co., 744 F. 2d 686 (1984); and In re Fulwiler, 624 F. 2d 908 (1980) (per curium). Significantly, in none of those cases did the court identify any basis for disallowing a contractual claim for attorney’s fees incurred litigating issues of federal bankruptcy law. Nor did the court have occasion to do so; in each of those cases, the claim for attorney’s fees failed as a matter of state law. See Johnson, supra, at 741–742; Coast Trading, supra, at 693; Fulwiler, supra, at 910.[Footnote 3] The absence of textual support is fatal for the Fobian rule. Consistent with our prior statements regarding creditors’ entitlements in bankruptcy, see, e.g., Raleigh, 530 U. S., at 20, we generally presume that claims enforceable under applicable state law will be allowed in bankruptcy unless they are expressly disallowed. See 11 U. S. C. §502(b). Neither the court below nor PG&E has offered any reason why the fact that the attorney’s fees in this case were incurred litigating issues of federal bankruptcy law overcomes that presumption. Section 502(b)(4) is instructive on this point. That provision expressly disallows claims for a particular category of attorney’s fees—those “for services of an … attorney of the debtor,” to the extent the claimed fees “excee[d] the reasonable value of such services.” The existence of that provision suggests that, in its absence, a claim for such fees would be allowed in bankruptcy to the extent enforceable under state law. The absence of an analogous provision excluding the category of fees covered by the Fobian rule likewise suggests that the Code does not categorically disallow them. See 4 Collier ¶ 506.04[3][a], at 506–118 (concluding that Fobian “inverts the proper analysis” by allowing attorney’s fees only where they are expressly authorized by the Bankruptcy Code, and explaining that “a claim for attorney’s fees arising in the context of litigating bankruptcy issues must be allowed if valid under applicable state law”). Congress, of course, has the power to amend the Bankruptcy Code by adding a provision expressly disallowing claims for attorney’s fees incurred by creditors in the litigation of bankruptcy issues. But because no such provision exists, the Bankruptcy Code provides no basis for disallowing Travelers’ claim on the grounds stated by the Ninth Circuit. As we explained in FCC v. NextWave Personal Communications Inc., 537 U. S. 293 (2003), “where Congress has intended to provide . . . exceptions to provisions of the Bankruptcy Code, it has done so clearly and expressly.” Id., at 302. Here, the Bankruptcy Code does not “clearly and expressly” compel courts to follow the Fobian rule; on the contrary, the Code says nothing about unsecured claims for contractual attorney’s fees incurred while litigating issues of bankruptcy law. In light of the broad, permissive scope of §502(b)(1), and our prior recognition that “the character of [a contractual] obligation to pay attorney’s fees presents no obstacle to enforcing it in bankruptcy,” it necessarily follows that the Fobian rule cannot stand. Security Mortgage, 278 U. S., at 154; see Cohen v. de la Cruz, 523 U. S. 213, 221 (1998) (“We . . . ‘will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure’ ” (quoting Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 563 (1990))). III PG&E makes no effort to defend the Fobian rule. See Tr. of Oral Arg. 28 (conceding that PG&E does not defend the Fobian rule, and acknowledging that “[t]he Fobian rule is wrong . . . as to the distinction that it draws between State law and Federal litigation”). Instead, PG&E argues that §506(b) categorically disallows unsecured claims for contractual attorney’s fees and—noting that Travelers’ claim is unsecured—asks us to affirm on that basis. Section 506(b) provides as follows: “To the extent that an allowed secured claim is secured by property the value of which … is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose.” 11 U. S. C. A. §506(b) (Supp. 2006). According to PG&E, this provision authorizes claims for contractual attorney’s fees to the extent the creditor is oversecured, but disallows such claims to the extent the creditor is either not oversecured or (like Travelers) completely unsecured. This reading of the Code, PG&E argues, “is not a matter of negative implication, but of explicit negation.” Brief for Respondent 18. PG&E also argues that the structure and purpose of the Bankruptcy Code, examined against the backdrop of pre-Code bankruptcy law, confirm that Congress did not intend to allow unsecured creditors to recover attorney’s fees. See id., at 25–38. PG&E did not raise these arguments below. Consequently, none of the lower courts had occasion to address them. Nor were these arguments presented in PG&E’s brief in opposition to certiorari. PG&E nevertheless insists that we should address these arguments as though they were “fairly included” within the question presented in Travelers’ petition for certiorari. See id., at 41. That contention appears to be premised on the theory that “the Fobian rule reaches the correct conclusion in this case,” but “doesn’t go far enough in … preventing creditors from requiring other creditors to pay for their attorneys’ fees.” Tr. of Oral Arg. 25. We are not persuaded. We granted certiorari to resolve a conflict among the lower courts regarding the Fobian rule, which is analytically distinct from, and fundamentally at odds with, PG&E’s reading of §506(b).[Footnote 4] In any event, we ordinarily do not consider claims that were neither raised nor addressed below, Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 168–169 (2004), and PG&E has failed to identify any circumstances that would warrant an exception to that rule in this case. We therefore will not consider these arguments.[Footnote 5] Accordingly, we express no opinion with regard to whether, following the demise of the Fobian rule, other principles of bankruptcy law might provide an independent basis for disallowing Travelers’ claim for attorney’s fees. We conclude only that the Court of Appeals erred in disallowing that claim based on the fact that the fees at issue were incurred litigating issues of bankruptcy law. * * * The judgment of the United States Court of Appeals for the Ninth Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 California law required PG&E to provide workers’ compensation benefits for its employees by either (1) purchasing workers’ compensation insurance from a licensed provider of such insurance or (2) adopting a plan, with the State’s approval, to self-insure. PG&E chose the latter option, and was therefore required to post security with the State to ensure ongoing payment of mandatory workers’ compensation benefits. See Cal. Lab. Code Ann. §§3700, 3701 (West 2003). Travelers posted the required security by issuing a bond on PG&E’s behalf. The bond makes Travelers liable, up to $100 million, for workers’ compensation benefits in the event of a default by PG&E. Footnote 2 The Court of Appeals incorporated by reference the reasoning employed in In re DeRoche, 434 F. 3d 1188 (CA9 2006), which was decided by the same panel that decided this case. 167 Fed. Appx., at 593. Although the DeRoche opinion is longer than its counterpart in this case, it adds very little to the panel’s explanation of the Fobian rule. See DeRoche, supra, at 1190–1192. Footnote 3 In Johnson, the debtor sought attorney’s fees after the creditor unsuccessfully requested relief from the automatic stay under 11 U. S. C. §362(d)(1). The debtor acknowledged that the contract between the parties entitled only the creditor to attorney’s fees, but the debtor claimed that a California statute extended that entitlement to both parties. The court rejected that argument, noting that the statute applied only in the context of an “ ‘action on a contract,’ ” and concluding that a request for relief from an automatic stay could not be considered an action on a contract. 756 F. 2d, at 741–742. Both Coast Trading and Fulwiler involved claims for attorney’s fees based on an Oregon statute similar to the statute at issue in Johnson; the court found the statute inapplicable in both cases. Coast Trading, 744 F. 2d, at 693; Fulwiler, 624 F. 2d, at 909–910. Footnote 4 PG&E’s new reading of the Code would prohibit all unsecured creditors from recovering contractual, postpetition attorney’s fees in bankruptcy proceedings—even if those fees were incurred while litigating issues of state law. See Brief for Respondent 17–19. The Fobian rule, by contrast, would allow such a recovery—even by unsecured creditors—so long as the litigation resulting in the claimed fees did not involve “issues peculiar to federal bankruptcy law.” See In re Fobian, 951 F. 2d 1149, 1153 (CA9 1991). Footnote 5 For similar reasons, we will not address PG&E’s argument that Travelers’ claim should be denied based on the theory that the fees at issue were incurred in connection with activities that were not reasonably necessary to preserve Travelers’ rights and, alternatively, were not authorized by Travelers’ contract with PG&E. See Brief for Respondent 42–49. This argument was not addressed below, was not raised in PG&E’s brief in opposition to certiorari, and bears no relation to the question presented. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”).
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550.US.330
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Traditionally, municipalities in respondent Counties disposed of their own solid wastes, often via landfills that operated without permits and in violation of state regulations. Facing an environmental crisis and an uneasy relationship with local waste management companies, the Counties requested and the State created respondent Authority. The Counties and the Authority agreed that the Authority would manage all solid waste in the Counties. Private haulers could pick up citizens’ trash, but the Authority would process, sort, and send it off for disposal. The Authority would also provide other services, including recycling. If the Authority’s operating costs and debt service were not recouped through the “tipping fees” it charged, the Counties must make up the difference. To avoid such liability, the Counties enacted “flow control” ordinances requiring private haulers to obtain permits to collect solid waste in the Counties and to deliver the waste to the Authority’s sites. Petitioners, a trade association and individual haulers, filed suit under 42 U. S. C. §1983, alleging that the flow control ordinances violate the Commerce Clause by discriminating against interstate commerce. They submitted evidence that without the ordinances and the associated tipping fees, they could dispose of solid waste at out-of-state facilities for far less. Ruling in the haulers’ favor, the District Court held that nearly all flow control laws had been categorically rejected in C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383, where this Court held that an ordinance forcing haulers to deliver waste to a particular private facility discriminated against interstate commerce. Reversing, the Second Circuit held that Carbone and other of this Court’s so-called “dormant” Commerce Clause precedents allow for a distinction between laws that benefit public, as opposed to private, facilities. Held: The judgment is affirmed. 261 F. 3d 245 and 438 F. 3d 150, affirmed. The Chief Justice delivered the opinion of the Court with respect to Parts I, II–A, II–B, and II–C, concluding that the Counties’ flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not discriminate against interstate commerce. Pp. 6–13. (a) To determine whether a law violates the dormant Commerce Clause, the Court first asks whether it discriminates on its face against interstate commerce. In this context, “ ‘discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 99. Discriminatory laws motivated by “simple economic protectionism” are subject to a “virtually per se rule of invalidity,” Philadelphia v. New Jersey, 437 U. S. 617, 624, which can only be overcome by a showing that there is no other means to advance a legitimate local purpose, Maine v. Taylor, 477 U. S. 131, 138. P. 6. (b) Carbone does not control this case. Carbone involved a flow control ordinance requiring that all nonhazardous solid waste within a town be deposited, upon payment of an above-market tipping fee, at a transfer facility run by a private contractor under an agreement with the town. See 511 U. S., at 387. The dissent there opined that the ostensibly private transfer station was “essentially a municipal facility,” id., at 419, and that this distinction should have saved the ordinance because favoring local government is different from favoring a particular private company. The majority’s failure to comment on the public-private distinction does not prove, as the haulers’ contend, that the majority agreed with the dissent’s characterization of the facility, but thought there was no difference under the dormant Commerce Clause between laws favoring private entities and those favoring public ones. Rather, the Carbone majority avoided the issue because the transfer station was private, and therefore the question whether public facilities may be favored was not properly before the Court. The majority viewed the ordinance as “just one more instance of local processing requirements that we long have held invalid,” id., at 391, citing six local processing cases involving discrimination in favor of private enterprise. If the Court were extending this line of cases to cover discrimination in favor of local government, it could be expected to have said so. Thus, Carbone cannot be regarded as having decided the public-private question. Pp. 6–9. (c) The flow control ordinances in this case do not discriminate against interstate commerce. Compelling reasons justify treating these laws differently from laws favoring particular private businesses over their competitors. “[A]ny notion of discrimination assumes a comparison of substantially similar entities,” General Motors Corp. v. Tracy, 519 U. S. 278, 298, whereas government’s important responsibilities to protect the health, safety, and welfare of its citizens set it apart from a typical private business, cf. id., at 313. Moreover, in contrast to laws favoring in-state business over out-of-state competition, which are often the product of economic protectionism, laws favoring local government may be directed toward any number of legitimate goals unrelated to protectionism. Here, the ordinances enable the Counties to pursue particular policies with respect to waste handling and treatment, while allocating the costs of those policies on citizens and businesses according to the volume of waste they generate. The contrary approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government. The Counties’ citizens could have left the entire matter of waste management services for the private sector, in which case any regulation they undertook could not discriminate against interstate commerce. But it was also open to them to vest responsibility for the matter with their government, and to adopt flow control ordinances to support the government effort. It is not the office of the Commerce Clause to control the voters’ decision in this regard. The Court is particularly hesitant to interfere here because waste disposal is typically and traditionally a function of local government exercising its police power. Nothing in the Commerce Clause vests the responsibility for such a policy judgment with the Federal Judiciary. Finally, while the Court’s dormant Commerce Clause cases often find discrimination when the burden of state regulation falls on interests outside the State, the most palpable harm imposed by the ordinances at issue—more expensive trash removal—will likely fall upon the very people who voted for the laws, the Counties’ citizens. There is no reason to step in and hand local businesses a victory they could not obtain through the political process. Pp. 10–13. Roberts, C. J., delivered the opinion of the Court, except as to Part II–D. Souter, Ginsburg, and Breyer, JJ., joined that opinion in full. Scalia, J., filed an opinion concurring as to Parts I and II–A through II–C. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Stevens and Kennedy, JJ., joined.
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except as to Part II–D. “Flow control” ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant. Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause. Applying the Commerce Clause test reserved for regulations that do not discriminate against interstate commerce, we uphold these ordinances because any incidental burden they may have on interstate commerce does not outweigh the benefits they confer on the citizens of Oneida and Herkimer Counties. I Located in central New York, Oneida and Herkimer Counties span over 2,600 square miles and are home to about 306,000 residents. Traditionally, each city, town, or village within the Counties has been responsible for disposing of its own waste. Many had relied on local landfills, some in a more environmentally responsible fashion than others. By the 1980’s, the Counties confronted what they could credibly call a solid waste “ ‘crisis.’ ” Brief for Respondents 4. Many local landfills were operating without permits and in violation of state regulations. Sixteen were ordered to close and remediate the surrounding environment, costing the public tens of millions of dollars. These environmental problems culminated in a federal clean-up action against a landfill in Oneida County; the defen- dants in that case named over 600 local businesses and several municipalities and school districts as third-party defendants. The “crisis” extended beyond health and safety concerns. The Counties had an uneasy relationship with local waste management companies, enduring price fixing, pervasive overcharging, and the influence of organized crime. Dramatic price hikes were not uncommon: In 1986, for example, a county contractor doubled its waste disposal rate on six weeks’ notice. Responding to these problems, the Counties requested and New York’s Legislature and Governor created the Oneida-Herkimer Solid Waste Management Authority (Authority), a public benefit corporation. See N. Y. Pub. Auth. Law Ann. §2049–aa et seq. (West 1995). The Authority is empowered to collect, process, and dispose of solid waste generated in the Counties. §2049–ee(4). To further the Authority’s governmental and public purposes, the Counties may impose “appropriate and reasonable limitations on competition” by, for instance, adopting “local laws requiring that all solid waste … be delivered to a specified solid waste management-resource recovery facility.” §2049–tt(3). In 1989, the Authority and the Counties entered into a Solid Waste Management Agreement, under which the Authority agreed to manage all solid waste within the Counties. Private haulers would remain free to pick up citizens’ trash from the curb, but the Authority would take over the job of processing the trash, sorting it, and sending it off for disposal. To fulfill its part of the bargain, the Authority agreed to purchase and develop facilities for the processing and disposal of solid waste and recyclables generated in the Counties. The Authority collected “tipping fees” to cover its operating and maintenance costs for these facilities.[Footnote 1] The tipping fees significantly exceeded those charged for waste removal on the open market, but they allowed the Authority to do more than the average private waste disposer. In addition to landfill transportation and solid waste disposal, the fees enabled the Authority to provide recycling of 33 kinds of materials, as well as composting, household hazardous waste disposal, and a number of other services. If the Authority’s operating costs and debt service were not recouped through tipping fees and other charges, the agreement provided that the Counties would make up the difference. As described, the agreement had a flaw: Citizens might opt to have their waste hauled to facilities with lower tipping fees. To avoid being stuck with the bill for facilities that citizens voted for but then chose not to use, the Counties enacted “flow control” ordinances requiring that all solid waste generated within the Counties be delivered to the Authority’s processing sites.[Footnote 2] Private haulers must obtain a permit from the Authority to collect waste in the Counties. Penalties for noncompliance with the ordinances include permit revocation, fines, and imprisonment. Petitioners are United Haulers Association, Inc., a trade association made up of solid waste management companies, and six haulers that operated in Oneida and Herkimer Counties when this action was filed. In 1995, they sued the Counties and the Authority under Rev. Stat. §1979, 42 U. S. C. §1983, alleging that the flow control laws violate the Commerce Clause by discriminating against interstate commerce. They submitted evidence that without the flow control laws and the associated $86-per-ton tipping fees, they could dispose of solid waste at out-of-state facilities for between $37 and $55 per ton, including transportation. The District Court read our decision in Carbone, 511 U. S. 383, as categorically rejecting nearly all flow control laws. The court ruled in the haulers’ favor, enjoining enforcement of the Counties’ laws. The Second Circuit reversed, reasoning that Carbone and our other dormant Commerce Clause precedents allow for a distinction between laws that benefit public as opposed to private facilities. 261 F. 3d 245, 263 (2001). Accordingly, it held that a statute does not discriminate against interstate commerce when it favors local government at the expense of all private industry. The court remanded to let the District Court decide whether the Counties’ ordinances nevertheless placed an incidental burden on interstate commerce, and if so, whether the ordinances’ benefits outweighed that burden. On remand and after protracted discovery, a Magistrate Judge and the District Court found that the haulers did not show that the ordinances imposed any cognizable burden on interstate commerce. The Second Circuit affirmed, assuming that the laws exacted some toll on interstate commerce, but finding any possible burden “modest” compared to the “clear and substantial” benefits of the ordinances. 438 F. 3d 150, 160 (2006). Because the Sixth Circuit had recently issued a conflicting decision holding that a flow control ordinance favoring a public entity does facially discriminate against interstate commerce, see National Solid Wastes Management Assn. v. Daviess Cty., 434 F. 3d 898 (2006), we granted certiorari, 548 U. S. ___ (2006). II A The Commerce Clause provides that “Congress shall have Power … [t]o regulate Commerce with foreign Nations, and among the several States.” U. S. Const., Art. I, §8, cl. 3. Although the Constitution does not in terms limit the power of States to regulate commerce, we have long interpreted the Commerce Clause as an implicit restraint on state authority, even in the absence of a conflicting federal statute. See Case of the State Freight Tax, 15 Wall. 232, 279 (1873); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318 (1852). To determine whether a law violates this so-called “dormant” aspect of the Commerce Clause, we first ask whether it discriminates on its face against interstate commerce. American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n, 545 U. S. 429, 433 (2005); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353, 359 (1992). In this context, “ ‘discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 99 (1994); New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 273 (1988). Discriminatory laws motivated by “simple economic protectionism” are subject to a “virtually per se rule of invalidity,” Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978), which can only be overcome by a showing that the State has no other means to advance a legitimate local purpose, Maine v. Taylor, 477 U. S. 131, 138 (1986). B Following the lead of the Sixth Circuit in Daviess County, the haulers argue vigorously that the Counties’ ordinances discriminate against interstate commerce under Carbone. In Carbone, the town of Clarkstown, New York, hired a private contractor to build a waste transfer station. According to the terms of the deal, the contractor would operate the facility for five years, charging an above-market tipping fee of $81 per ton; after five years, the town would buy the facility for one dollar. The town guaranteed that the facility would receive a certain volume of trash per year. To make good on its promise, Clarkstown passed a flow control ordinance requiring that all nonhazardous solid waste within the town be deposited at the transfer facility. See 511 U. S., at 387. This Court struck down the ordinance, holding that it discriminated against interstate commerce by “hoard[ing] solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility.” Id., at 392. The dissent pointed out that all of this Court’s local processing cases involved laws that discriminated in favor of private entities, not public ones. Id., at 411 (opinion of Souter, J.). According to the dissent, Clarkstown’s ostensibly private transfer station was “essentially a municipal facility,” id., at 419, and this distinction should have saved Clarkstown’s ordinance because favoring local government is by its nature different from favoring a particular private company. The majority did not comment on the dissent’s public-private distinction. The parties in this case draw opposite inferences from the majority’s silence. The haulers say it proves that the majority agreed with the dissent’s characterization of the facility, but thought there was no difference under the dormant Commerce Clause between laws favoring private entities and those favoring public ones. The Counties disagree, arguing that the majority studiously avoided the issue because the facility in Carbone was private, and therefore the question whether public facilities may be favored was not properly before the Court.[Footnote 3] We believe the latter interpretation of Carbone is correct. As the Second Circuit explained, “in Carbone the Justices were divided over the fact of whether the favored facility was public or private, rather than on the import of that distinction.” 261 F. 3d, at 259 (emphasis in original). The Carbone dissent offered a number of reasons why public entities should be treated differently from private ones under the dormant Commerce Clause. See 511 U. S., at 419–422 (opinion of Souter, J.). It is hard to suppose that the Carbone majority definitively rejected these arguments without explaining why. The Carbone majority viewed Clarkstown’s flow control ordinance as “just one more instance of local processing requirements that we long have held invalid.” Id., at 391. It then cited six local processing cases, every one of which involved discrimination in favor of private enterprise.[Footnote 4] The Court’s own description of the cases acknowledges that the “offending local laws hoard a local resource—be it meat, shrimp, or milk—for the benefit of local businesses that treat it.” Id., at 392 (emphasis added). If the Court were extending this line of local processing cases to cover discrimination in favor of local government, one would expect it to have said so. Cf. United States v. Burr, 25 F. Cas. 55, 165 (No. 14,693) (CC Va. 1807) (Marshall, C. J.) (“[A]n opinion which is to … establish a principle never before recognized, should be expressed in plain and explicit terms”). The Carbone majority stated that “[t]he only conceivable distinction” between the laws in the local processing cases and Clarkstown’s flow control ordinance was that Clarkstown’s ordinance favored a single local business, rather than a group of them. 511 U. S., at 392 (emphasis added). If the Court thought Clarkstown’s processing facility was public, that additional distinction was not merely “conceivable”—it was conceived, and discussed at length, by three Justices in dissent. Carbone cannot be regarded as having decided the public-private question.[Footnote 5] C The flow control ordinances in this case benefit a clearly public facility, while treating all private companies exactly the same. Because the question is now squarely presented on the facts of the case before us, we decide that such flow control ordinances do not discriminate against interstate commerce for purposes of the dormant Commerce Clause. Compelling reasons justify treating these laws differently from laws favoring particular private businesses over their competitors. “Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities.” General Motors Corp. v. Tracy, 519 U. S. 278, 298 (1997) (footnote omitted). But States and municipalities are not private businesses—far from it. Unlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 756 (1985) (“The States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons” (internal quotation marks omitted)). These important responsibilities set state and local government apart from a typical private business. Cf. Tracy, supra, at 313 (Scalia, J., concurring) (“Nothing in this Court’s negative Commerce Clause jurisprudence” compels the conclusion “that private marketers engaged in the sale of natural gas are similarly situated to public utility companies”). Given these differences, it does not make sense to regard laws favoring local government and laws favoring private industry with equal skepticism. As our local processing cases demonstrate, when a law favors in-state business over out-of-state competition, rigorous scrutiny is appropriate because the law is often the product of “simple economic protectionism.” Wyoming v. Oklahoma, 502 U. S. 437, 454 (1992); Philadelphia v. New Jersey, 437 U. S., at 626–627. Laws favoring local government, by contrast, may be directed toward any number of legitimate goals unrelated to protectionism. Here the flow control ordinances enable the Counties to pursue particular policies with respect to the handling and treatment of waste generated in the Counties, while allocating the costs of those policies on citizens and businesses according to the volume of waste they generate. The contrary approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government. The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition. In this case, the citizens of Oneida and Herkimer Counties have chosen the government to provide waste management services, with a limited role for the private sector in arranging for transport of waste from the curb to the public facilities. The citizens could have left the entire matter for the private sector, in which case any regulation they undertook could not discriminate against interstate commerce. But it was also open to them to vest responsibility for the matter with their government, and to adopt flow control ordinances to support the government effort. It is not the office of the Commerce Clause to control the decision of the voters on whether government or the private sector should provide waste management services. “The Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values.” Maine v. Taylor, 477 U. S., at 151. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 127 (1978) (Commerce Clause does not protect “the particular structure or method of operation” of a market). We should be particularly hesitant to interfere with the Counties’ efforts under the guise of the Commerce Clause because “[w]aste disposal is both typically and traditionally a local government function.” 261 F. 3d, at 264 (case below) (Calabresi, J., concurring); see USA Recycling, Inc. v. Town of Babylon, 66 F. 3d 1272, 1275 (CA2 1995) (“For ninety years, it has been settled law that garbage collection and disposal is a core function of local government in the United States”); M. Melosi, Garbage in the Cities: Refuse, Reform, and the Environment, 1880–1980, pp. 153–155 (1981). Congress itself has recognized local government’s vital role in waste management, making clear that “collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies.” Resource Conservation and Recovery Act of 1976, 90 Stat. 2797, 42 U. S. C. §6901(a)(4). The policy of the State of New York favors “displac[ing] competition with regulation or monopoly control” in this area. N. Y. Pub. Auth. Law Ann. §2049–tt(3). We may or may not agree with that approach, but nothing in the Commerce Clause vests the responsibility for that policy judgment with the Federal Judiciary.[Footnote 6] Finally, it bears mentioning that the most palpable harm imposed by the ordinances—more expensive trash removal—is likely to fall upon the very people who voted for the laws. Our dormant Commerce Clause cases often find discrimination when a State shifts the costs of regulation to other States, because when “the burden of state regulation falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected.” Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 767–768, n. 2 (1945). Here, the citizens and businesses of the Counties bear the costs of the ordinances. There is no reason to step in and hand local businesses a victory they could not obtain through the political process. We hold that the Counties’ flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not “discriminate against interstate commerce” for purposes of the dormant Commerce Clause.[Footnote 7] D The Counties’ flow control ordinances are properly analyzed under the test set forth in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970), which is reserved for laws “directed to legitimate local concerns, with effects upon interstate commerce that are only incidental.” Philadelphia v. New Jersey, 437 U. S., at 624. Under the Pike test, we will uphold a nondiscriminatory statute like this one “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” 397 U. S., at 142; Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U. S. 493, 525–526 (1989). After years of discovery, both the Magistrate Judge and the District Court could not detect any disparate impact on out-of-state as opposed to in-state businesses. The Second Circuit alluded to, but did not endorse, a “rather abstract harm” that may exist because “the Counties’ flow control ordinances have removed the waste generated in Oneida and Herkimer Counties from the national marketplace for waste processing services.” 438 F. 3d, at 160. We find it unnecessary to decide whether the ordinances impose any incidental burden on interstate commerce because any arguable burden does not exceed the public benefits of the ordinances. The ordinances give the Counties a convenient and effective way to finance their integrated package of waste-disposal services. While “revenue generation is not a local interest that can justify discrimination against interstate commerce,” Carbone, 511 U. S., at 393 (emphasis added), we think it is a cognizable benefit for purposes of the Pike test. At the same time, the ordinances are more than financing tools. They increase recycling in at least two ways, conferring significant health and environmental benefits upon the citizens of the Counties. First, they create enhanced incentives for recycling and proper disposal of other kinds of waste. Solid waste disposal is expensive in Oneida-Herkimer, but the Counties accept recyclables and many forms of hazardous waste for free, effectively encouraging their citizens to sort their own trash. Second, by requiring all waste to be deposited at Authority facilities, the Counties have markedly increased their ability to enforce recycling laws. If the haulers could take waste to any disposal site, achieving an equal level of enforcement would be much more costly, if not impossible. For these reasons, any arguable burden the ordinances impose on interstate commerce does not exceed their public benefits. * * * The Counties’ ordinances are exercises of the police power in an effort to address waste disposal, a typical and traditional concern of local government. The haulers nevertheless ask us to hold that laws favoring public entities while treating all private businesses the same are subject to an almost per se rule of invalidity, because of asserted discrimination. In the alternative, they maintain that the Counties’ laws cannot survive the more permissive Pike test, because of asserted burdens on commerce. There is a common thread to these arguments: They are invitations to rigorously scrutinize economic legislation passed under the auspices of the police power. There was a time when this Court presumed to make such binding judgments for society, under the guise of interpreting the Due Process Clause. See Lochner v. New York, 198 U. S. 45 (1905). We should not seek to reclaim that ground for judicial supremacy under the banner of the dormant Commerce Clause. The judgments of the United States Court of Appeals for the Second Circuit are affirmed. It is so ordered. Footnote 1 Tipping fees are disposal charges levied against collectors who drop off waste at a processing facility. They are called “tipping” fees because garbage trucks literally tip their back end to dump out the carried waste. As of 1995, haulers in the Counties had to pay tipping fees of at least $86 per ton, a price that ballooned to as much as $172 per ton if a particular load contained more than 25% recyclables. Footnote 2 Oneida’s flow control ordinance provides in part: “From the time of placement of solid waste and of recyclables at the roadside or other designated area approved by the County or by the Authority pursuant to contract with the County, or by a person for collection in accordance herewith, such solid waste and recyclables shall be delivered to the appropriate facility, entity or person responsible for disposition designated by the County or by the Authority pursuant to contract with the Authority.” App. to Pet. for Cert. 122a. The relevant portion of Herkimer’s flow control ordinance is substantially similar: “After placement of garbage and of recyclable materials at the roadside or other designated area approved by the Legislature by a person for collection in accordance herewith, such garbage and recyclable material shall be delivered to the appropriate facility designated by the Legislature, or by the Authority pursuant to contract with the County.” Id., at 135a. Footnote 3 Each side makes much of the Carbone majority’s various descriptions of the facility. The haulers point out that the Court twice referred to the construction and financing of the transfer station as the town’s project. See 511 U. S., at 387 (“its new facility”), 394 (“its project”); Brief for Petitioners 20–22. The Counties note that the majority referred to the transfer station as a “town-sponsored facility,” Carbone, 511 U. S., at 393, a “favored local operator,” id., at 389, “the preferred processing facility,” a “single local proprietor,” and a “local business,” id., at 392, but never as a public facility. Brief for Respondents 17, n. 7. The dissent has mined the Carbone decision, appendix, and briefs for further instances of allegedly supportive terminology, post, at 4–5 (opinion of Alito, J.) but we continue to find this duel of labels at best inconclusive. Footnote 4 See South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82 (1984) (invalidating Alaska regulation requiring all Alaskan timber to be processed in-state prior to export); Pike v. Bruce Church, Inc., 397 U. S. 137 (1970) (invalidating application of an Arizona statute to require Arizona-grown cantaloupes to be packaged within the State before export); Toomer v. Witsell, 334 U. S. 385 (1948) (invalidating South Carolina statute requiring shrimp fisherman to unload, pack, and stamp their catch before shipping it to another State); Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928) (invalidating a Louisiana statute prohibiting the export of shrimp unless the heads and hulls had first been removed within the State); Johnson v. Haydel, 278 U. S. 16 (1928) (invalidating analogous Louisiana statute for oysters); Minnesota v. Barber, 136 U. S. 313 (1890) (invalidating Minnesota law requiring any meat sold within the State to be examined by an in-state inspector). Dean Milk Co. v. Madison, 340 U. S. 349 (1951) (invalidating local ordinance requiring all milk sold in the city to be pasteurized within five miles of the city center)—discussed elsewhere in Carbone and in the dissent here, post, at 12–13—is readily distinguishable on the same ground. Footnote 5 The dissent asserts that the Court “long ago recognized that the Commerce Clause can be violated by a law that discriminates in favor of a state-owned monopoly.” Post, at 6. The authority it cites—Scott v. Donald, 165 U. S. 58 (1897), and Vance v. W. A. Vandercook Co., 170 U. S. 438, 442 (1898)—certainly qualifies as from “long ago,” but does not support the proposition. Scott struck down two laws that discriminated in favor of in-state businesses and against out-of-state businesses; neither law favored local government at the expense of all private industry. See 165 U. S., at 92–93, 101; Granholm v. Heald, 544 U. S. 460, 478–479 (2005) (describing Scott holding). Scott is simply another case like those cited in footnote 4. Vance actually upheld “South Carolina’s monopoly over liquor distribution[,] . . . reject[ing] the argument that this monopoly system was unconstitutionally discriminatory.” Granholm, supra, at 507 (Thomas, J., dissenting) (citing Vance, supra, at 450–452). It was the dissent in Vance that argued that “such a state monopoly system constituted unconstitutional discrimination.” Granholm, supra, at 507 (Thomas, J., dissenting) (citing 170 U. S., at 462–468 (opinion of Shiras, J.)). The Vance Court simply struck down a regulation on direct shipments to consumers for personal use, under the Court’s excruciatingly arcane pre-Prohibition precedents. See 170 U. S., at 455. Most tellingly, Vance harkens back to a bygone era; until the dissent today, it had been cited by this Court in only two cases in the past 60 years. Footnote 6 Justice Thomas is thus wrong in stating that our approach might suggest “a policy-driven preference for government monopoly over privatization.” Post, at 6 (opinion concurring in judgment). That is instead the preference of the affected locality here. Our opinion simply recognizes that a law favoring a public entity and treating all private entities the same does not discriminate against interstate commerce as does a law favoring local business over all others. Footnote 7 The Counties and their amicus were asked at oral argument if affirmance would lead to the “Oneida-Herkimer Hamburger Stand,” accompanied by a “flow control” law requiring citizens to purchase their burgers only from the state-owned producer. Tr. of Oral Arg. 33–34 (Counties), 45–46, 49–50 (amicus State of New York). We doubt it. “The existence of major in-state interests adversely affected by [a law] is a powerful safeguard against legislative abuse.” Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 473, n. 17 (1981). Recognizing that local government may facilitate a customary and traditional government function such as waste disposal, without running afoul of the Commerce Clause, is hardly a prescription for state control of the economy. In any event, Congress retains authority under the Commerce Clause as written to regulate interstate commerce, whether engaged in by private or public entities. It can use this power, as it has in the past, to limit state use of exclusive franchises. See, e.g., Gibbons v. Ogden, 9 Wheat. 1, 221 (1824).
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551.US.128
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Sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 allow private parties to recover expenses associated with cleaning up contaminated sites. Section 107(a) defines four categories of potentially responsible parties (PRPs) and makes them liable for, among other things, “(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan” and “(B) any other necessary costs of response incurred by any other person consistent with [such] plan,” §§107(a)(4)(A)–(B). Originally, some courts interpreted §107(a)(4)(B) as providing a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. However, after the enactment of §113(f), which authorizes one PRP to sue another for contribution, many courts held it to be the exclusive remedy for PRPs. In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, this Court held that a private party could seek contribution under §113(f) only after being sued under §106 or §107(a). After respondent Atlantic Research cleaned up a Government site it leased and contaminated while doing Government work, it sued the Government to recover some of its costs under, as relevant here, §107(a). The District Court dismissed the case, but the Eighth Circuit reversed, holding that §113(f) does not provide the exclusive remedy for recovering cleanup costs and that §107(a)(4)(B) provided a cause of action to any person other than those permitted to sue under §107(a)(4)(A). Held: Because §107(a)(4)(B)’s plain terms allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action. Pp. 4–11. (a) Applying the maxim that statutes must “be read as a whole,” King v. St. Vincent’s Hospital, 502 U. S. 215, 221, subparagraph (B)’s language can be understood only with reference to subparagraph (A). The provisions are adjacent and have similar structures, and the text denotes a relationship between them. Subparagraph (B)’s phrase “other necessary costs” refers to and differentiates the relevant costs from those listed in subparagraph (A). Thus, it is natural to read the phrase “any other person” by referring to the immediately preceding subparagraph (A). Accepting the Government’s interpretation—that “any other person” refers only to a person not identified as a PRP in §§107(a)(1)–(4)—would destroy the symmetry of subparagraphs (A) and (B) and render subparagraph (B) internally confusing. Moreover, because the statute defines PRPs so broadly as to sweep in virtually all persons likely to incur cleanup costs, accepting that interpretation would reduce the number of potential plaintiffs to almost zero, rendering subparagraph (B) a dead letter. Pp. 4–7. (b) Contrary to the Government’s argument, this interpretation will not create friction between §107(a) and §113(f). Their two clearly distinct remedies complement each other: §113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under §106 or §107(a), while §107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Thus, at least in the case of reimbursement, a PRP cannot choose §107(a)’s longer statute of limitations for recovery actions over §113(f)’s shorter one for contribution claims. Similarly, a PRP could not avoid §113(f)’s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability under §107(a). That choice of remedies simply does not exist, and in any event, a defendant PRP in a §107(a) suit could blunt any such distribution by filing a §113(f) counterclaim. Finally, permitting PRPs to seek recovery under §107(a) will not eviscerate §113(f)(2), which prohibits §113(f) contribution claims against “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement … .” Although that settlement bar does not by its terms protect against §107(a) cost-recovery liability, a district court applying traditional equity rules would undoubtedly consider any prior settlement in the liability calculus; the settlement bar continues to provide significant protection from contribution suits by PRPs that have inequitably reimbursed costs incurred by another party; and settlement carries the inherent benefit of finally resolving liability as to the United States or a State. Pp. 7–11. 459 F. 3d 827, affirmed. Thomas, J., delivered the opinion for a unanimous Court.
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Two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)—§§107(a) and 113(f)—allow private parties to recover expenses associated with cleaning up contaminated sites. 42 U. S. C. §§9607(a), 9613(f). In this case, we must decide a question left open in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004): whether §107(a) provides so-called potentially responsible parties (PRPs), 42 U. S. C. §§9607(a)(1)–(4), with a cause of action to recover costs from other PRPs. We hold that it does. I A Courts have frequently grappled with whether and how PRPs may recoup CERCLA-related costs from other PRPs. The questions lie at the intersection of two statutory provisions—CERCLA §§107(a) and 113(f). Section 107(a) defines four categories of PRPs, 94 Stat. 2781, 42 U. S. C. §§9607(a)(1)–(4), and makes them liable for, among other things: “(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; [and] “(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan.” §9607(a)(4)(A)–(B). Enacted as part of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 100 Stat. 1613, §113(f) authorizes one PRP to sue another for contribution in certain circumstances. 42 U. S. C. §9613(f).[Footnote 1] Prior to the advent of §113(f)’s express contribution right, some courts held that §107(a)(4)(B) provided a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. See Cooper Industries, supra, at 161–162 (collecting cases); Key Tronic Corp. v. United States, 511 U. S. 809, 816, n. 7 (1994) same. After SARA’s enactment, however, some Courts of Appeals believed it necessary to “direc[t] traffic between” §107(a) and §113(f). 459 F. 3d 827, 832 (CA8 2006) (case below). As a result, many Courts of Appeals held that §113(f) was the exclusive remedy for PRPs. See Cooper Industries, supra, at 169 (collecting cases). But as courts prevented PRPs from suing under §107(a), they expanded §113(f) to allow PRPs to seek “contribution” even in the absence of a suit under §106 or §107(a). Aviall Servs., Inc. v. Cooper Industries, Inc., 312 F. 3d 677, 681 (CA5 2002) (en banc). In Cooper Industries, we held that a private party could seek contribution from other liable parties only after having been sued under §106 or §107(a). 543 U. S., at 161. This narrower interpretation of §113(f) caused several Courts of Appeals to reconsider whether PRPs have rights under §107(a)(4)(B), an issue we declined to address in Cooper Industries. Id., at 168. After revisiting the issue, some courts have permitted §107(a) actions by PRPs. See Consolidated Edison Co. of N. Y. v. UGI Utilities, Inc., 423 F. 3d 90 (CA2 2005); Metropolitan Water Reclamation Dist. of Greater Chicago v. North American Galvanizing & Coatings, Inc., 473 F. 3d 824 (CA7 2007). However, at least one court continues to hold that §113(f) provides the exclusive cause of action available to PRPs. E. I. Dupont de Nemours & Co. v. United States, 460 F. 3d 515 (CA3 2006). Today, we resolve this issue. B In this case, respondent Atlantic Research leased property at the Shumaker Naval Ammunition Depot, a facility operated by the Department of Defense. At the site, Atlantic Research retrofitted rocket motors for petitioner United States. Using a high-pressure water spray, Atlantic Research removed pieces of propellant from the motors. It then burned the propellant pieces. Some of the resultant wastewater and burned fuel contaminated soil and groundwater at the site. Atlantic Research cleaned the site at its own expense and then sought to recover some of its costs by suing the United States under both §107(a) and §113(f). After our decision in Cooper Industries foreclosed relief under §113(f), Atlantic Research amended its complaint to seek relief under §107(a) and federal common law. The United States moved to dismiss, arguing that §107(a) does not allow PRPs (such as Atlantic Research) to recover costs. The District Court granted the motion to dismiss, relying on a case decided prior to our decision in Cooper Industries, Dico, Inc. v. Amoco Oil Co., 340 F. 3d 525 (CA8 2003). The Court of Appeals for the Eighth Circuit reversed. Recognizing that Cooper Industries undermined the reasoning of its prior precedent, 459 F. 3d, at 830, n. 4, the Court of Appeals joined the Second and Seventh Circuits in holding that §113(f) does not provide “the exclusive route by which [PRPs] may recover cleanup costs.” Id., at 834 (citing Consolidated Edison Co., supra). The court reasoned that §107(a)(4)(B) authorized suit by any person other than the persons permitted to sue under §107(a)(4)(A). 459 F. 3d, at 835. Accordingly, it held that §107(a)(4)(B) provides a cause of action to Atlantic Research. To prevent perceived conflict between §107(a)(4)(B) and §113(f)(1), the Court of Appeals reasoned that PRPs that “have been subject to §§106 or 107 enforcement actions are still required to use §113, thereby ensuring its continued vitality.” Id., at 836–837. We granted certiorari, 549 U. S. ___ (2007), and now affirm. II A The parties’ dispute centers on what “other person[s]” may sue under §107(a)(4)(B). The Government argues that “any other person” refers to any person not identified as a PRP in §§107(a)(1)–(4).[Footnote 2] In other words, subparagraph (B) permits suit only by non-PRPs and thus bars Atlantic Research’s claim. Atlantic Research counters that subparagraph (B) takes its cue from subparagraph (A), not the earlier paragraph (1)–(4). In accord with the Court of Appeals, Atlantic Research believes that subparagraph (B) provides a cause of action to anyone except the United States, a State, or an Indian tribe—the persons listed in subparagraph (A). We agree with Atlantic Research. Statutes must “be read as a whole.” King v. St. Vincent’s Hospital, 502 U. S. 215, 221 (1991). Applying that maxim, the language of suparagraph (B) can be understood only with reference to subparagraph (A). The provisions are adjacent and have remarkably similar structures. Each concerns certain costs that have been incurred by certain entities and that bear a specified relationship to the national contingency plan.[Footnote 3] Bolstering the structural link, the text also denotes a relationship between the two provisions. By using the phrase “other necessary costs,” subparagraph (B) refers to and differentiates the relevant costs from those listed in subparagraph (A). In light of the relationship between the subparagraph, it is natural to read the phrase “any other person” by referring to the immediately preceding subparagraph (A), which permits suit only by the United States, a State, or an Indian tribe. The phrase “any other person” therefore means any person other than those three. See 42 U. S. C. §9601(21) (defining “person” to include the United States and the various States). Consequently, the plain language of subparagraph (B) authorizes cost-recovery actions by any private party, including PRPs. See Key Tronic, 511 U. S., at 818 (stating in dictum that §107 “impliedly authorizes private parties to recover cleanup costs from other PRP[s]” (emphasis added)). The Government’s interpretation makes little textual sense. In subparagraph (B), the phrase “any other necessary costs” and the phrase “any other person” both refer to antecedents—“costs” and “person[s]”—located in some previous statutory provision. Although “any other necessary costs” clearly references the costs in subparagraph (A), the Government would inexplicably interpret “any other person” to refer not to the persons listed in subparagraph (A) but to the persons listed as PRPs in paragraphs (1)–(4). Nothing in the text of §107(a)(4)(B) suggests an intent to refer to antecedents located in two different statutory provisions. Reading the statute in the manner suggested by the Government would destroy the symmetry of §§107(a)(4)(A) and (B) and render subparagraph (B) internally confusing. Moreover, the statute defines PRPs so broadly as to sweep in virtually all persons likely to incur cleanup costs. Hence, if PRPs do not qualify as “any other person” for purposes of §107(a)(4)(B), it is unclear what private party would. The Government posits that §107(a)(4)(B) authorizes relief for “innocent” private parties—for instance, a landowner whose land has been contaminated by another. But even parties not responsible for contamination may fall within the broad definitions of PRPs in §§107(a)(1)–(4). See 42 U. S. C. §9607(a)(1) (listing “the owner and operator of a … facility” as a PRP); see also United States v. Alcan Aluminum Corp., 315 F. 3d 179, 184 (CA2 2003) (“CERCLA §9607 is a strict liability statute”). The Government’s reading of the text logically precludes all PRPs, innocent or not, from recovering cleanup costs. Accordingly, accepting the Government’s interpretation would reduce the number of potential plaintiffs to almost zero, rendering §107(a)(4)(B) a dead letter.[Footnote 4] See Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 475 (1911) (“We must have regard to all the words used by Congress, and as far as possible give effect to them”). According to the Government, our interpretation suffers from the same infirmity because it causes the phrase “any other person” to duplicate work done by other text. In the Government’s view, the phrase “any other necessary costs” “already precludes governmental entities from recovering under” §107(a)(4)(B). Brief for United States 20. Even assuming the Government is correct, it does not alter our conclusion. The phrase “any other person” performs a significant function simply by clarifying that subparagraph (B) excludes the persons enumerated in subparagraph (A). In any event, our hesitancy to construe statutes to render language superfluous does not require us to avoid surplusage at all costs. It is appropriate to tolerate a degree of surplusage rather than adopt a textually dubious construction that threatens to render the entire provision a nullity. B The Government also argues that our interpretation will create friction between §107(a) and §113(f), the very harm courts of appeals have previously tried to avoid. In particular, the Government maintains that our interpretation, by offering PRPs a choice between §107(a) and §113(f), effectively allows PRPs to circumvent §113(f)’s shorter statute of limitations. See 42 U. S. C. §§9613(g)(2)–(3). Furthermore, the Government argues, PRPs will eschew equitable apportionment under §113(f) in favor of joint and several liability under §107(a). Finally, the Government contends that our interpretation eviscerates the settlement bar set forth in §113(f)(2). We have previously recognized that §§107(a) and 113(f) provide two “clearly distinct” remedies. Cooper Industries, 543 U. S., at 163, n. 3. “CERCLA provide[s] for a right to cost recovery in certain circumstances, §107(a), and separate rights to contribution in other circumstances, §§113(f)(1), 113(f)(3)(B).” Id., at 163 (emphases added). The Government, however, uses the word “contribution” as if it were synonymous with any apportionment of expenses among PRPs. Brief for United States 33, n. 14 (“Contribution is merely a form of cost recovery, not a wholly independent type of relief”); see also, e.g., Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d 1298, 1301 (CA9 1997) (“Because all PRPs are liable under the statute, a claim by one PRP against another PRP necessarily is for contribution”). This imprecise usage confuses the complementary yet distinct nature of the rights established in §§107(a) and 113(f). Section 113(f) explicitly grants PRPs a right to contribution. Contribution is defined as the “tortfeasor’s right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.” Black’s Law Dictionary 353 (8th ed. 1999). Nothing in §113(f) suggests that Congress used the term “contribution” in anything other than this traditional sense. The statute authorizes a PRP to seek contribution “during or following” a suit under §106 or §107(a). 42 U. S. C. §9613(f)(1).[Footnote 5] Thus, §113(f)(1) permits suit before or after the establishment of common liability. In either case, a PRP’s right to contribution under §113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties. By contrast, §107(a) permits recovery of cleanup costs but does not create a right to contribution. A private party may recover under §107(a) without any establishment of liability to a third party. Moreover, §107(a) permits a PRP to recover only the costs it has “incurred” in cleaning up a site. 42 U. S. C. §9607(a)(4)(B). When a party pays to satisfy a settlement agreement or a court judgment, it does not incur its own costs of response. Rather, it reimburses other parties for costs that those parties incurred. Accordingly, the remedies available in §§107(a) and 113(f) complement each other by providing causes of action “to persons in different procedural circumstances.” Consolidated Edison, 423 F. 3d, at 99; see also E. I. Dupont de Nemours, 460 F. 3d, at 548 (Sloviter, J., dissenting). Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under §106 or §107(a). And §107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Hence, a PRP that pays money to satisfy a settlement agreement or a court judgment may pursue §113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under §107(a). As a result, though eligible to seek contribution under §113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under §107(a). Thus, at least in the case of reimbursement, the PRP cannot choose the 6-year statute of limitations for cost-recovery actions over the shorter limitations period for §113(f) contribution claims.[Footnote 6] For similar reasons, a PRP could not avoid §113(f)’s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability on another PRP in an action under §107(a).[Footnote 7] The choice of remedies simply does not exist. In any event, a defendant PRP in such a §107(a) suit could blunt any inequitable distribution of costs by filing a §113(f) counterclaim. 459 F. 3d, at 835; see also Consolidated Edison, supra, at 100, n. 9 (collecting cases). Resolution of a §113(f) counter-claim would necessitate the equitable apportionment of costs among the liable parties, including the PRP that filed the §107(a) action. 42 U. S. C. §9613(f)(a) (“In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate”). Finally, permitting PRPs to seek recovery under §107(a) will not eviscerate the settlement bar set forth in §113(f)(2). That provision prohibits §113(f) contribution claims against “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement … .” 42 U. S. C. §9613(f)(2). The settlement bar does not by its terms protect against cost-recovery liability under §107(a). For several reasons, we doubt this supposed loophole would discourage settlement. First, as stated above, a defendant PRP may trigger equitable apportionment by filing a §113(f) counterclaim. A district court applying traditional rules of equity would undoubtedly consider any prior settlement as part of the liability calculus. Cf. Restatement (Second) of Torts §886A(2), p. 337 (1977) (“No tortfeasor can be required to make contribution beyond his own equitable share of the liability”). Second, the settlement bar continues to provide significant protection from contribution suits by PRPs that have inequitably reimbursed the costs incurred by another party. Third, settlement carries the inherent benefit of finally resolving liability as to the United States or a State.[Footnote 8] III Because the plain terms of §107(a)(4)(B) allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action. We therefore affirm the judgment of the Court of Appeals. It is so ordered. Footnote 1 Section 113(f)(1) permits private parties to seek contribution during or following a civil action under §106 or §107(a). 42 U. S. C. §9613(f)(1). Section 113(f)(3)(B) permits private parties to seek contribution after they have settled their liability with the Government. §9613(f)(3)(B). Footnote 2 CERCLA §107(a) lists four broad categories of persons as PRPs, by definition liable to other persons for various costs: “(1) the owner and operator of a vessel or a facility, “(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, “(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and “(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for [various costs].” 42 U. S. C. §§9607(a)(1)–(4). Footnote 3 “The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency … .” Cooper Industries Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, n. 2 (2004) (citing 40 CFR pt. 300 (2004)). Footnote 4 Congress amended the statute in 2002 to exempt some bona fide prospective purchasers (BFPPs) from liability under §107(a). See 42 U. S. C. §9607(r)(1) (2000 ed., Supp. IV). The Government claims that these persons are non-PRPs and therefore qualify as “any other person” under its interpretation of §107(a)(4)(B). Prior to 2002, however, the statute made this small set of persons liable as PRPs. Accordingly, even if BFPPs now give some life to the Government’s interpretation of §107(a)(4)(B), it would be implausible at best to conclude that §107(a)(4)(B) lay dormant until the enactment of §107(r)(1) in 2002. Footnote 5 Similarly, §113(f)(3)(B) permits a PRP to seek contribution after it “has resolved its liability to the United States or a State … in an administrative or judicially approved settlement … .” 42 U. S. C. §9613(f)(3)(B). Footnote 6 We do not suggest that §§107(a)(4)(B) and 113(f) have no overlap at all. Key Tronic Corp. v. United States, 511 U. S. 809, 816 (1994) (stating the statutes provide “similar and somewhat overlapping remed[ies]”). For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under §106 or §107(a). See, e.g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F. 3d 96, 97 (CA1 1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under §113(f), §107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of §107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under §113(f). Thus, at a minimum, neither remedy swallows the other, contrary to the Government’s argument. Footnote 7 We assume without deciding that §107(a) provides for joint and several liability. Footnote 8 Because §107(a) expressly permits PRPs to seek cost recovery, we need not address the alternative holding of the Court of Appeals that §107(a) contains an additional implied right to contribution for PRPs who are not eligible for relief under §113(f). Cf. Cooper Industries, 543 U. S., at 171 (citing Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 (1981)).
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549.US.102
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Respondent, a Mexican citizen, was charged with violating 8 U. S. C. §1326(a) by attempting to reenter the United States after having been deported. The District Court denied his motion to have the indictment dismissed because it did not allege a specific overt act that he committed in seeking reentry. In reversing, the Ninth Circuit reasoned that the indictment’s omission of an overt act was a fatal flaw not subject to harmless-error review. Held: Respondent’s indictment was not defective, and, thus, this Court need not reach the harmless-error issue. While the Government does not dispute that respondent cannot be guilty of attempted reentry under §1326(a) unless he committed an overt act qualifying as a substantial step toward completing his goal or that “[a]n indictment must set forth each element of the crime that it charges,” Almendarez-Torres v. United States, 523 U. S. 224, 228, it contends that the instant indictment implicitly alleged that respondent engaged in the necessary overt act by alleging that he “attempted” to enter the country. This Court agrees. Not only does “attempt” as used in common parlance connote action rather than mere intent, but, more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements. Thus, an indictment alleging attempted reentry under §1326(a) need not specifically allege a particular overt act or any other “component par[t]” of the offense. See Hamling v. United States, 418 U. S. 87, 117. It was enough for the indictment to point to the relevant criminal statute and allege that respondent “intentionally attempted to enter the United States … at or near San Louis … Arizona” “[o]n or about June 1, 2003.” App. 8. An indictment has two constitutional requirements: “first, [it must] contai[n] the elements of the offense charged and fairly infor[m] a defendant of the charge against which he must defend, and, second, [it must] enabl[e] him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling, 418 U. S., at 117. Here, the use of the word “attempt,” coupled with the specification of the time and place of the alleged reentry, satisfied both. Respondent’s argument that the indictment would have been sufficient only if it alleged any of three overt acts performed during his attempted reentry—that he walked into an inspection area; that he presented a misleading identification card; or that he lied to the inspector—is rejected. Respondent is correct that some crimes must be charged with greater specificity than an indictment parroting a federal criminal statute’s language, see Russell v. United States, 369 U. S. 749, but the Russell Court’s reasoning suggests that there was no infirmity in the present indictment, see id., at 764, 762, and respondent’s indictment complied with Federal Rule of Criminal Procedure 7(c)(1), which provides that an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Pp. 5–9. 425 F. 3d 729, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion.
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A jury convicted respondent Juan Resendiz-Ponce, a Mexican citizen, of illegally attempting to reenter the United States. Because the indictment failed to allege a specific overt act that he committed in seeking reentry, the Court of Appeals set aside his conviction and remanded for dismissal of the indictment. We granted the Government’s petition for certiorari to answer the question whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. Although the Government expressly declined to “seek review of the court of appeals’ threshold holdings that the commission of an overt act was an element of the offense of attempted unlawful reentry and that the indictment failed to allege that element,” Pet. for Cert. 9, n. 3, “ ‘[i]t is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case,’ ” Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring) (quoting Burton v. United States, 196 U. S. 283, 295 (1905)). For that reason, after oral argument we ordered the parties to file supplemental briefs directed to the question whether respondent’s indictment was in fact defective. We conclude that it was not and therefore reverse without reaching the harmless-error issue. I Respondent was deported twice, once in 1988 and again in 2002, before his attempted reentry on June 1, 2003. On that day, respondent walked up to a port of entry and displayed a photo identification of his cousin to the border agent. Respondent told the agent that he was a legal resident and that he was traveling to Calexico, California. Because he did not resemble his cousin, respondent was questioned, taken into custody, and ultimately charged with a violation of 8 U. S. C. §1326(a).[Footnote 1] The indictment alleged: “On or about June 1, 2003, JUAN RESENDIZ-PONCE, an alien, knowingly and intentionally attempted to enter the United States of America at or near San Luis in the District of Arizona, after having been previously denied admission, excluded, deported, and removed from the United States at or near Nogales, Arizona, on or about October 15, 2002, and not having obtained the express consent of the Secretary of the Department of Homeland Security to reapply for admission. “In violation of Title 8, United States Code, Sections 1326(a) and enhanced by (b)(2).” App. 8. Respondent moved to dismiss the indictment, contending that it “fail[ed] to allege an essential element, an overt act, or to state the essential facts of such overt act.” Id., at 12. The District Court denied the motion and, after the jury found him guilty, sentenced respondent to a 63-month term of imprisonment. The Ninth Circuit reversed, reasoning that an indictment’s omission of “an essential element of the offense is a fatal flaw not subject to mere harmless error analysis.” 425 F. 3d 729, 732 (2005). In the court’s view, respondent’s indictment was fatally flawed because it nowhere alleged “any specific overt act that is a substantial step” toward the completion of the unlawful reentry.[Footnote 2] Id., at 733. The panel majority explained: “The defendant has a right to be apprised of what overt act the government will try to prove at trial, and he has a right to have a grand jury consider whether to charge that specific overt act. Physical crossing into a government inspection area is but one of a number of other acts that the government might have alleged as a substantial step toward entry into the United States. The indictment might have alleged the tendering a bogus identification card; it might have alleged successful clearance of the inspection area; or it might have alleged lying to an inspection officer with the purpose of being admitted… . A grand jury never passed on a specific overt act, and Resendiz was never given notice of what specific overt act would be proved at trial.” Ibid. Judge Reavley concurred, agreeing that Ninth Circuit precedent mandated reversal. If not bound by precedent, however, he would have found the indictment to be “constitutionally sufficient” because it clearly informed respondent “of the precise offense of which he [was] accused so that he [could] prepare his defense and so that a judgment thereon [would] safeguard him from a subsequent prosecution for the same offense.” Ibid. II At common law, the attempt to commit a crime was itself a crime if the perpetrator not only intended to commit the completed offense, but also performed “ ‘some open deed tending to the execution of his intent.’ ” 2 W. LaFave, Substantive Criminal Law §11.2(a), p. 205 (2d ed. 2003) (quoting E. Coke, Third Institute 5 (6th ed. 1680)); see Keedy, Criminal Attempts at Common Law, 102 U. Pa. L. Rev. 464, 468 (1954) (noting that common-law attempt required “that some act must be done towards carrying out the intent”). More recently, the requisite “open deed” has been described as an “overt act” that constitutes a “substantial step” toward completing the offense. 2 LaFave, Substantive Criminal Law §11.4; see ALI, Model Penal Code §5.01(1) (c) (1985) (defining “criminal attempt” to include “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”); see also Braxton v. United States, 500 U. S. 344, 349 (1991) (“For Braxton to be guilty of an attempted killing under 18 U. S. C. §1114, he must have taken a substantial step towards that crime, and must also have had the requisite mens rea”). As was true at common law, the mere intent to violate a federal criminal statute is not punishable as an attempt unless it is also accompanied by significant conduct. The Government does not disagree with respondent’s submission that he cannot be guilty of attempted reentry in violation of 8 U. S. C. §1326(a) unless he committed an overt act qualifying as a substantial step toward completion of his goal. See Supplemental Brief for United States 7–8. Nor does it dispute that “[a]n indictment must set forth each element of the crime that it charges.” Almendarez-Torres v. United States, 523 U. S. 224, 228 (1998). It instead contends that the indictment at bar implicitly alleged that respondent engaged in the necessary overt act “simply by alleging that he ‘attempted to enter the United States.’ ” Supplemental Brief for United States 8. We agree. Not only does the word “attempt” as used in common parlance connote action rather than mere intent, but more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements. Consequently, an indictment alleging attempted illegal reentry under §1326(a) need not specifically allege a particular overt act or any other “component par[t]” of the offense. See Hamling v. United States, 418 U. S. 87, 119 (1974). Just as it was enough for the indictment in Hamling to allege that the defendant mailed “obscene” material in violation of 18 U. S. C. §1461, see 418 U. S., at 117–118, it was enough for the indictment in this case to point to the relevant criminal statute and allege that “[o]n or about June 1, 2003,” respondent “attempted to enter the United States of America at or near San Luis in the District of Arizona.”[Footnote 3] App. 8. In Hamling, we identified two constitutional requirements for an indictment: “first, [that it] contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, [that it] enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” 418 U. S., at 117. In this case, the use of the word “attempt,” coupled with the specification of the time and place of respondent’s attempted illegal reentry, satisfied both. Indeed, the time-and-place information provided respondent with more adequate notice than would an indictment describing particular overt acts. After all, a given defendant may have approached the border or lied to a border-patrol agent in the course of countless attempts on innumerable occasions. For the same reason, the time-and-date specification in respondent’s indictment provided ample protection against the risk of multiple prosecutions for the same crime.[Footnote 4] Respondent nonetheless maintains that the indictment would have been sufficient only if it had alleged any of three overt acts performed during his attempted reentry: that he walked into an inspection area; that he presented a misleading identification card; or that he lied to the inspector. See Supplemental Brief for Respondent 7. Individually and cumulatively, those acts tend to prove the charged attempt—but none was essential to the finding of guilt in this case. All three acts were rather part of a single course of conduct culminating in the charged “attempt.” As Justice Holmes explained in Swift & Co. v. United States, 196 U. S. 375, 396 (1905), “[t]he unity of the plan embraces all the parts.”[Footnote 5] Respondent is of course correct that while an indictment parroting the language of a federal criminal statute is often sufficient, there are crimes that must be charged with greater specificity. See Hamling, 418 U. S., at 117. A clear example is the statute making it a crime for a witness summoned before a congressional committee to refuse to answer any question “pertinent to the question under inquiry.” 2 U. S. C. §192. As we explained at length in our opinion in Russell v. United States, 369 U. S. 749 (1962), a valid indictment for such a refusal to testify must go beyond the words of §192 and allege the subject of the congressional hearing in order to determine whether the defendant’s refusal was “pertinent.” Based on a number of cases arising out of congressional investigations, we recognized that the relevant hearing’s subject was frequently uncertain but invariably “central to every prosecution under the statute.” Id., at 764. Both to provide fair notice to defendants and to assure that any conviction would arise out of the theory of guilt presented to the grand jury, we held that indictments under §192 must do more than restate the language of the statute. Our reasoning in Russell suggests that there was no infirmity in the present indictment. First, unlike the statute at issue in Russell, guilt under 8 U. S. C. §1326(a) does not “depen[d] so crucially upon such a specific identification of fact.” 369 U. S., at 764. Second, before explaining the special need for particularity in charges brought under 2 U. S. C. §192, Justice Stewart noted that, in 1872, Congress had enacted a statute reflecting “the drift of the law away from the rules of technical and formalized pleading which had characterized an earlier era.”[Footnote 6] 369 U. S., at 762. After the repeal of that statute, there was no other legislation dealing generally with the subject of indictments until the promulgation of Federal Rule of Criminal Procedure 7(c)(1). As we have said, the Federal Rules “were designed to eliminate technicalities in criminal pleadings and are to be construed to secure simplicity in procedure.” United States v. Debrow, 346 U. S. 374, 376 (1953). While detailed allegations might well have been required under common-law pleading rules, see, e.g., Commonwealth v. Peaslee, 177 Mass. 267, 59 N. E. 55 (1901), they surely are not contemplated by Rule 7(c)(1), which provides that an indictment “shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”[Footnote 7] Because we are satisfied that respondent’s indictment fully complied with that Rule and did not deprive him of any significant protection that the constitutional guarantee of a grand jury was intended to confer, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Title 8 U. S. C. §1326 provides, in part: “Reentry of removed aliens “(a) In general “Subject to subsection (b) of this section, any alien who— “(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter “(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, “shall be fined under title 18, or imprisoned not more than 2 years, or both.” Footnote 2 In the opinion of the Ninth Circuit, the five elements of the offense of attempted reentry in violation of §1326(a) are: “(1) the defendant had the purpose, i.e., conscious desire, to reenter the United States without the express consent of the Attorney General; (2) the defendant committed an overt act that was a substantial step towards reentering without that consent; (3) the defendant was not a citizen of the United States; (4) the defendant had previously been lawfully denied admission, excluded, deported or removed from the United States; and (5) the Attorney General had not consented to the defendant's attempted reentry.” United States v. Gracidas-Ulibarry, 231 F. 3d 1188, 1196 (2000) (en banc). Footnote 3 See United States v. Toma, No. 94–CR–333, 1995 WL 65031, *1 (ND Ill. 1995) (“[F]or indictment purposes, use of the word ‘attempt’ is sufficient to incorporate the substantial step element. The word ‘attempt’ necessarily means taking a substantial step” (footnote omitted)). Footnote 4 There is little practical difference between our holding and Justice Scalia’s position. Apparently, Justice Scalia would have found the indictment to be sufficient if it also stated that respondent “ ‘took a substantial step’ ” toward entering the United States. See post, at 6 (dissenting opinion). Unlike the Ninth Circuit, then, Justice Scalia would not have required the indictment to allege a particular overt act such as tendering a false identification to a border inspector. Compare ibid. with Resendiz-Ponce, 425 F. 3d at 729, 733. With all due respect to his principled position, we think that the “substantial step” requirement is implicit in the word “attempt,” and we do not believe that adding those four words would have given respondent any greater notice of the charges against him or protection against future prosecution. Footnote 5 Likewise, it would it be unrealistic to suggest that respondent actually committed three separate attempt offenses involving three different overt acts. Indeed, if each overt act were treated as a separate element, an attempt involving multiple overt acts might conceivably qualify for several separate offenses, thus perversely enhancing, rather than avoiding, the risk of successive prosecution for the same wrong. Footnote 6 The 1872 statute provided that “no indictment found and presented by a grand jury in any district or circuit … shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.” §8, 17 Stat. 198. The opinion in Russell noted that the 1872 statute had been repealed, but its substance had been preserved in Federal Rule of Criminal Procedure 52(a). See 369 U. S., at 762. Footnote 7 Federal Rule of Criminal Procedure 31(c) is also instructive. It provides that a defendant may be found guilty of “an attempt to commit the offense charged; or … an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right.” Fed. Rule Crim. Proc. 31(c)(2)–(3). If a defendant indicted only for a completed offense can be convicted of attempt under Rule 31(c) without the indictment ever mentioning an overt act, it would be illogical to dismiss an indictment charging “attempt” because it fails to allege such an act.
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551.US.1
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A Washington jury sentenced respondent Brown to death, and the state appellate courts affirmed. Subsequently, the Federal District Court denied Brown’s habeas petition, but the Ninth Circuit reversed, finding that under Witherspoon v. Illinois, 391 U. S. 510, and its progeny, the state trial court had violated Brown’s Sixth and Fourteenth Amendment rights by excusing “Jurors Z” for cause on the ground that he could not be impartial in deciding whether to impose a death sentence. Held: 1. Courts reviewing claims of error under Witherspoon and Wainwright v. Witt, 469 U. S. 412, especially federal habeas courts, owe deference to the trial court, which is in a superior position to determine a potential juror’s demeanor and qualifications. This Court’s precedents establish at least four relevant principles. First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Witherspoon, supra, at 521. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. Witt, 469 U. S., at 416. Third, to balance these interests, a juror who is substantially impaired in the ability to impose the death penalty under the state-law framework can be excused for cause, but if the juror is not so impaired, removal for cause is impermissible. Id., at 424. Fourth, in determining whether a potential juror’s removal would vindicate the State’s interest without violating the defendant’s right, the trial court bases its judgment in part on the juror’s demeanor, a judgment owed deference by reviewing courts. Id., at 424–434. The trial court is in a superior position to assess demeanor, a factor critical in assessing the attitude and qualifications of potential jurors. Id., at 428. The Antiterrorism and Effective Death Penalty Act of 1996’s requirements provide additional, and binding, directions to accord deference, creating an independent, high standard to be met before a federal court may issue a habeas writ to set aside state-court rulings. By not according the required deference here, the Ninth Circuit failed to respect the limited role of federal habeas relief in this area. Pp. 2–7. 2. In applying the Witherspoon-Witt rule, it is instructive to consider the entire voir dire in Brown’s case and then turn to Juror Z’s questioning. Pp. 7–12. (a) Here, 11 days of voir dire were devoted to determining whether potential jurors were death qualified. During that phase, 11 of the jurors the defense challenged for cause were excused. The defense objected to 7 of the 12 jurors the State challenged for cause, and only 2 of those 7 were excused. Before deciding a contested challenge, the court allowed each side to explain its position and recall a potential juror. It also gave careful and measured explanations for its decisions. Before individual oral examination, the court distributed a questionnaire asking jurors to explain their attitudes toward the death penalty and explained that Brown was only eligible for death or life in prison without possibility of release or parole. It repeated the sentencing options before Juror Z’s group was questioned. Pp. 7–10. (b) The transcript reveals that, despite the preceding instructions and information, Juror Z had both serious misunderstandings about his responsibility as a juror and an attitude toward capital punishment that could have prevented him from returning a death sentence under the facts of this case. He was told at least four times that Brown could not be released from prison and stated six times that he could follow the law. But he also gave more equivocal statements that he would consider the death penalty only if there was no possibility that Brown would be released to reoffend. When the State challenged Juror Z on the grounds that he was confused about the conditions under which death could be imposed and seemed to believe it only appropriate when there was a risk of release and recidivism, the defense volunteered that it had no objection. Pp. 10–12. 3. The Ninth Circuit erred in holding that both the state trial court’s excusal of Juror Z and the State Supreme Court’s affirmance were contrary to, or an unreasonable application of, clearly established federal law. Pp. 12–19. (a) Contrary to the Ninth Circuit’s conclusion, the State Supreme Court explicitly found that Juror Z was substantially impaired. Even absent this explicit finding, the only fair reading of the opinion is that the state court applied the Witt standard in assessing his excusal. Regardless, there is no requirement in a case involving the Witt-Witherspoon rule that a state appellate court make particular reference to each juror’s excusal, for it is the trial court’s ruling that counts. Pp. 12–14. (b) On this record, the trial court acted well within its discretion in granting the State’s motion to excuse Juror Z. His answers, on their face, could have led the trial court to believe that he would be substantially impaired in his ability to impose the death penalty absent the possibility that Brown would be released and would reoffend. The trial court, furthermore, is entitled to deference because it had an opportunity to observe Juror Z’s demeanor. The State’s challenge, Brown’s waiver of an objection, and the trial court’s excusal of Juror Z support the conclusion that the interested parties all felt that removal was appropriate under the Witherspoon-Witt rule. While there is no independent federal requirement that a state-court defendant object to the prosecution’s challenge to preserve a Witherspoon claim, voluntary acquiescence to, or confirmation of, a juror’s removal can be taken into account. The defense did not just deny a conscientious trial judge an opportunity to explain his judgment or correct an error; it also deprived reviewing courts of further factual findings to help explain the trial court’s decision. The need to defer to the trial court’s demeanor decision does not foreclose the possibility of reversal where the record discloses no basis for a substantial impairment finding, but the record here does not show the trial court exceeded its discretion in excusing Juror Z. The State Supreme Court recognized the deference owed and, contrary to the Ninth Circuit’s misreading of its opinion, identified the correct standard required by federal law and found it satisfied. Pp. 14–17. (c) The Court is not persuaded by Brown’s additional arguments to depart from the State Supreme Court’s determination of the state law at issue or to ignore Brown’s failure to object to Juror Z’s excusal. Pp. 17–19. 451 F. 3d 946, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Souter, J., joined.
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Respondent Cal Coburn Brown robbed, raped, tortured, and murdered one woman in Washington. Two days later, he robbed, raped, tortured, and attempted to murder a second woman in California. Apprehended, Brown confessed to these crimes and pleaded guilty to the California offenses, for which he received a sentence of life imprisonment. The State of Washington, however, sought the death penalty and brought Brown to trial. Based on the jury’s verdicts in the guilt and sentencing phases of the trial, Brown was sentenced to death. His conviction and sentence were affirmed by the Supreme Court of the State of Washington. State v. Brown, 132 Wash. 2d. 529, 940 P. 2d 546 (1997) (en banc). Brown filed a petition for writ of habeas corpus in the United States District Court for the Western District of Washington. The District Court denied the petition, App. to Pet. for Cert. 77a–79a, 91a, but the United States Court of Appeals for the Ninth Circuit reversed. Brown v. Lambert, 451 F. 3d 946 (2006). The Court of Appeals considered, among other arguments for setting aside the capital sentence, the contention that under Witherspoon v. Illinois, 391 U. S. 510 (1968), and its progeny, the state trial court had violated Brown’s Sixth and Fourteenth Amendment rights by excusing three potential jurors—whom we refer to as Jurors X, Y, and Z—for cause. The State moved to excuse these jurors due to the concern that they could not be impartial in deciding whether to impose a death sentence. The Court of Appeals held it was proper to excuse Jurors X and Y, but agreed with the defense that it was unconstitutional to excuse Juror Z for cause. On this premise the court held that Brown’s death sentence could not stand, requiring that Brown receive a new sentencing trial more than a decade after his conviction. We granted certiorari, 549 U. S. __ (2007), and we reverse the judgment of the Court of Appeals. I When considering the controlling precedents, Witherspoon is not the final word, but it is a necessary starting point. During the voir dire that preceded William Witherspoon’s capital trial, the prosecution succeeded in removing a substantial number of jurors based on their general scruples against inflicting the death penalty. The State challenged, and the trial court excused for cause, 47 members of the 96-person venire, without significant examination of the individual prospective jurors. 391 U. S., at 514–515; see also Brief for Petitioner in Witherspoon v. Illinois, O. T. 1967, No. 1015, p. 4. The Court held that the systematic removal of those in the venire opposed to the death penalty had led to a jury “uncommonly willing to condemn a man to die,” 391 U. S., at 521, and thus “woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments,” id., at 518. Because “[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State,” id., at 519, the Court held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty,” id., at 522. The Court also set forth, in dicta in a footnote, a strict standard for when an individual member of the venire may be removed for cause on account of his or her views on the death penalty. Id., at 522–523, n. 21. In Wainwright v. Witt, 469 U. S. 412 (1985), the Court explained that “Witherspoon is best understood in the context of its facts.” Id., at 418. The Court noted that in Witherspoon the trial court had excused half the venire—every juror with conscientious objections to capital punishments. 469 U. S., at 416. Furthermore, the state sentencing scheme under which Witherspoon’s sentence was imposed permitted the jury “unlimited discretion in choice of sentence.” Id., at 421. When a juror is given unlimited discretion, the Court explained, all he or she must do to follow instructions is consider the death penalty, even if in the end he or she would not be able to impose it. Ibid. Rejecting the strict standard found in Witherspoon’s footnote 21, the Court recognized that the diminished discretion now given to capital jurors and the State’s interest in administering its capital punishment scheme called for a different standard. The Court relied on Adams v. Texas, 448 U. S. 38, 45 (1980), which provided the following standard: “[W]hether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Witt, 469 U. S., at 424 (internal quotation marks omitted). The Court in Witt instructed that, in applying this standard, reviewing courts are to accord deference to the trial court. Deference is owed regardless of whether the trial court engages in explicit analysis regarding substantial impairment; even the granting of a motion to excuse for cause constitutes an implicit finding of bias. Id., at 430. The judgment as to “whether a veniremen is biased … is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province. Such determinations [are] entitled to deference even on direct review; the respect paid such findings in a habeas proceeding certainly should be no less.” Id., at 428 (internal quotation marks, footnote, and brackets omitted). And the finding may be upheld even in the absence of clear statements from the juror that he or she is impaired because “many veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear’; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings.” Id., at 424–425. Thus, when there is ambiguity in the prospective juror’s statements, “the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s] demeanor, [is] entitled to resolve it in favor of the State.” Id., at 434. The rule of deference was reinforced in Darden v. Wainwright, 477 U. S. 168 (1986). There, the State had challenged a potential juror, and the defense had not objected to his removal. Without further questioning from the trial court, the juror was excused. Id., at 178. The petitioner argued to this Court that the transcript of voir dire did not show that the removed juror was substantially impaired because the critical answer he had given was ambiguous. The Court rejected this argument. “[O]ur inquiry does not end with a mechanical recitation of a single question and answer.” Id., at 176. Even when “[t]he precise wording of the question asked of [the venireman], and the answer he gave, do not by themselves compel the conclusion that he could not under any circumstance recommend the death penalty,” the need to defer to the trial court remains because so much may turn on a potential juror’s demeanor. Id., at 178. The absence of an objection, and the trial court’s decision not to engage in further questioning as it had prior to excusing other jurors, supported the conclusion that the juror was impaired. Ibid. In Gray v. Mississippi, 481 U. S. 648 (1987), the Court addressed once more a case involving not the excusal of a single juror but rather systematic exclusion. The State had lodged for-cause or peremptory challenges against every juror who “expressed any degree of uncertainty in the ability to cast . . . a vote” for the death penalty, id., at 652, and quickly exhausted all 12 of its peremptory challenges, id., at 653. The prosecution then challenged a juror who had expressed no opposition to the death penalty and had said many times that she could return a death sentence. The trial court denied the challenge. Id., at 654–655. Arguing that the trial court had erroneously denied certain earlier challenges for cause, and thus had forced the State to waste peremptory challenges, the prosecution sought to reopen those previous challenges. The trial court refused to do so, but removed the current juror, over objection from the defense. Id., at 655. On appeal all of the state judges agreed the juror could not be excused for cause under either the Witherspoon or the Witt standard, but the majority held it was appropriate, under the circumstances, to treat the challenge in question as a peremptory strike. 481 U. S., at 656–657. This Court reversed, holding that the juror had been removed for cause and that she was not substantially impaired under the controlling Witt standard. 481 U. S., at 659. The error was not subject to harmlessness review, and thus the sentence could not stand. Ibid. Gray represents a rare case, however, because in the typical situation there will be a state-court finding of substantial impairment; in Gray, the state courts had found the opposite, which makes that precedent of limited significance to the instant case. These precedents establish at least four principles of relevance here. First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Witherspoon, 391 U. S., at 521. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes. Witt, 469 U. S., at 416. Third, to balance these interests, a juror who is substantially impaired in his or her ability to impose the death penalty under the state-law framework can be excused for cause; but if the juror is not substantially impaired, removal for cause is impermissible. Id., at 424. Fourth, in determining whether the removal of a potential juror would vindicate the State’s interest without violating the defendant’s right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed deference by reviewing courts. Id., at 424–434. Deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors. Id., at 428; Darden, supra, at 178. Leading treatises in the area make much of nonverbal communication. See, e.g., V. Starr & M. McCormick, Jury Selection 389–523 (3d ed. 2001); J. Frederick, Mastering Voir Dire and Jury Selection 39–56 (2d ed. 2005). The requirements of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, of course, provide additional, and binding, directions to accord deference. The provisions of that statute create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings. See 28 U. S. C. §§2254(d)(1)–(2); Williams v. Taylor, 529 U. S. 362, 413 (2000). By not according the required deference, the Court of Appeals failed to respect the limited role of federal habeas relief in this area prescribed by Congress and by our cases. II A In applying the principles of Witherspoon and Witt, it is instructive to consider the entire voir dire in Brown’s case. Spanning more than two weeks, the process entailed an examination of numerous prospective jurors. After the third day of the voir dire, during which few jurors were questioned, the trial court explained the process would “have to go a little bit faster.” Tr. 1398. The next day, the court reiterated this concern, for it had told the jury the trial would take no more than six weeks in order not to conflict with the Christmas holidays. Id., at 1426. Eleven days of the voir dire were devoted to determining whether the potential jurors were death qualified. During that phase alone, the defense challenged 18 members of the venire for cause. Despite objections from the State, 11 of those prospective jurors were excused. As for the State, it made 12 challenges for cause; defense counsel objected seven times; and only twice was the juror excused following an objection from the defense. Before deciding a contested challenge, the trial court gave each side a chance to explain its position and recall the potential juror for additional questioning. When issuing its decisions the court gave careful and measured explanations. See, e.g., id., at 2601–2604 (denying the State’s motion to excuse a juror following an objection for defense); App. 97–100 (granting the State’s motion to excuse Juror X despite an objection from defense). Before the State challenged Juror Z, the defense moved to excuse a potential juror who had demonstrated some confusion. After argument from both counsel, the trial court explained that it would be open to further questioning if one of the parties felt the juror’s position could be clarified: “I thought at first the both of you were wanting to excuse [this juror] since he seemed kind of confused to both sides, but if there really is a question, let me know and I don’t have any hesitation about bringing the juror out here and following up.” Id., at 26. Consistent with the need for an efficient voir dire, the court also told counsel: “Let me point something out to both sides. If you are going to agree on a challenge, … we can shortcut some of what happens out here.” Ibid. Setting aside the disputed circumstances of Juror Z’s removal, the defense refrained from objecting to the State’s challenges for cause only when the challenged juror was explicit that he or she would not impose the death penalty or could not understand the burden of proof. See Tr. 1457, 1912, 2261, 2940. For other jurors, the defense objections were vigorous and, it seems, persuasive. The defense argued that the jurors’ equivocal statements reflected careful thinking and responsibility, not substantial impairment. See, e.g., id., at 1791, 2111, 2815. The tenacity of Brown’s counsel was demonstrated when, long after the trial court had overruled the defense objection and excused Juror Y, the defense moved in writing to have her returned for further questioning and rehabilitation. Id., at 3151–3154. The trial court denied this motion after argument from both parties. Id., at 3154. The defense also lodged its own challenges for cause. In defending them against the State’s objections, defense counsel argued, contrary to the position Brown takes in this Court, that a trial court cannot rely upon a potential juror’s bare promises to follow instructions and obey the law. See, e.g., id., at 1713–1714, 1960–1961, 2772–2773, 3014–3016. With regard to one juror, defense counsel argued: “Any time this individual was asked any questions about following the law, he will always indicate that he will. But when we look to see . . . his view[s] on the death penalty, . . . they [are] so strong that they would substantially impair his ability to follow the law and to follow his oath as a juror.” Id., at 1960–1961. In at least two instances this argument appears to have prevailed when the trial court overruled the State’s objection to Brown’s challenge for cause. A final, necessary part of this history is the instruction the venire received from the court concerning the sentencing options in the case. Before individual oral examination, the trial court distributed a questionnaire asking jurors to explain their attitudes toward the death penalty. When distributing the questionnaire, the court explained the general structure of the trial and the burden of proof. It described how the penalty phase would function: “[I]f you found Mr. Brown guilty of the crime of first degree murder with one or more aggravating circumstances, then you would be reconvened for a second phase called a sentencing phase. During that sentencing phase proceeding you could hear additional evidence [and] arguments concerning the penalty to be imposed. You would then be asked to retire to determine whether the death penalty should be imposed or whether the punishment should be life imprisonment without the possibility of parole. “In making this determination you would be asked the following question: Having in mind the crime with which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency? If you unanimously answered yes to this question, the sentence would be death. . . . [Otherwise] the sentence would be life imprisonment without the possibility of release or parole.” Id., at. 1089–1090. After the questionnaires were filled out, the jurors were provided with handbooks that explained the trial process and the sentencing phase in greater depth. Small groups of potential jurors were then brought in to be questioned. Before Juror Z’s group began, the court explained once more that if Brown were convicted, “there are only two penalties that a jury could return, one is life in prison without possibility of release or parole. And that literally means exactly that, a true life in prison without release or parole.” Id., at 2016. With this background, we turn to Juror Z’s examination. B Juror Z was examined on the seventh day of the voir dire and the fifth day of the death-qualification phase. The State argues that Juror Z was impaired not by his general outlook on the death penalty, but rather by his position regarding the specific circumstances in which the death penalty would be appropriate. The transcript of Juror Z’s questioning reveals that, despite the preceding instructions and information, he had both serious misunderstandings about his responsibility as a juror and an attitude toward capital punishment that could have prevented him from returning a death sentence under the facts of this case. Under the voir dire procedures, the prosecution and defense alternated in commencing the examination. For Juror Z, the defense went first. When questioned, Juror Z demonstrated no general opposition to the death penalty or scruples against its infliction. In fact, he soon explained that he “believe[d] in the death penalty in severe situations.” App. 58. He elaborated, “I don’t think it should never happen, and I don’t think it should happen 10 times a week either.” Id., at 63. “[T]here [are] times when it would be appropriate.” Ibid. The questioning soon turned to when that would be so. Juror Z’s first example was one in which “the defendant actually came out and said that he actually wanted to die.” Id., at 59. Defense set this aside and sought another example. Despite having been told at least twice by the trial court that if convicted of first-degree murder, Brown could not be released from prison, the only example Juror Z could provide was when “a person is . . . incorrigible and would reviolate if released.” Id., at 62. The defense counsel replied that there would be no possibility of Brown’s release and asked whether the lack of arguments about recidivism during the penalty phase would frustrate Juror Z. He answered, “I’m not sure.” Id., at 63. The State began its examination of Juror Z by noting that his questionnaire indicated he was “in favor of the death penalty if it is proved beyond a shadow of a doubt if a person has killed and would kill again.” Id., at 69. The State explained that the burden of proof was beyond a reasonable doubt, not beyond a shadow of a doubt, and asked whether Juror Z understood. He answered, “[I]t would have to be in my mind very obvious that the person would reoffend.” Id., at 70. In response the State once more explained to Juror Z, now for at least the fourth time, that there was no possibility of Brown’s being released to reoffend. Juror Z explained, “[I]t wasn’t until today that I became aware that we had a life without parole in the state of Washington,” id., at 71, although in fact a week earlier the trial judge had explained to Juror Z’s group that there was no possibility of parole when a defendant was convicted of aggravated first-degree murder. The prosecution then asked, “And now that you know there is such a thing . . . can you think of a time when you would be willing to impose a death penalty . . . ?” Id., at 71–72. Juror Z answered, “I would have to give that some thought.” Id., at 72. He supplied no further answer to the question. The State sought to probe Juror Z’s position further by asking whether he could “consider” the death penalty; Juror Z said he could, including under the general facts of Brown’s crimes. Ibid. When asked whether he no longer felt it was necessary for the State to show that Brown would reoffend, Juror Z gave this confusing answer: “I do feel that way if parole is an option, without parole as an option. I believe in the death penalty.” Id., at 72–73. Finally, when asked whether he could impose the death penalty when there was no possibility of parole, Juror Z answered, “[I]f I was convinced that was the appropriate measure.” Id., at 73. Over the course of his questioning, he stated six times that he could consider the death penalty or follow the law, see id., at 62, 70, 72, 73, but these responses were interspersed with more equivocal statements. The State challenged Juror Z, explaining that he was confused about the conditions under which death could be imposed and seemed to believe it only appropriate when there was a risk of release and recidivism. Id., at 75. Before the trial court could ask Brown for a response, the defense volunteered, “We have no objection.” Ibid. The court then excused Juror Z. Ibid. III On federal habeas review, years after the conclusion of the voir dire, the Court of Appeals granted Brown relief and overturned his sentence. The court held that both the state trial court’s excusal of Juror Z and the State Supreme Court’s affirmance of that ruling were contrary to, or an unreasonable application of, clearly established federal law. 451 F. 3d, at 953. The Court of Appeals held that the Supreme Court of Washington had failed to find that Juror Z was substantially impaired; it further held that the State Supreme Court could not have made that finding in any event because the transcript unambiguously proved Juror Z was not substantially impaired. For these reasons, explained the Court of Appeals, the trial court’s decision to excuse Juror Z was contrary to the Witherspoon-Witt rule despite Brown’s failure to object. Each of the holdings of the Court of Appeals is wrong. A As part of its exposition and analysis, the Court of Appeals found fault with the opinion of the Supreme Court of Washington. It stated that although the State Supreme Court had held that Jurors X and Y were substantially impaired, the same “finding is missing from the state court’s discussion” of Juror Z’s excusal. 451 F. 3d, at 950. The Court of Appeals therefore held “[t]he Washington Supreme Court in this case applied the wrong standard with respect to Juror Z.” Id., at 953, n. 10. This is an erroneous summary of the State Supreme Court’s opinion. The state court did make an explicit ruling that Juror Z was impaired. In a portion of the opinion entitled “Summary and Conclusions,” the court held: “The trial court properly exercised its discretion in excusing for cause prospective jurors [X, Y, and Z] during voir dire. Their views would have prevented or substantially impaired their ability to follow the court’s instructions and abide by their oaths as jurors.” Brown, 132 Wash. 2d, at 630, 940 P. 2d, at 598, 599. It is unclear why the Court of Appeals overlooked or disregarded this finding, and it was mistaken in faulting the completeness of the Supreme Court of Washington’s opinion. Even absent this explicit finding, the Supreme Court of Washington’s opinion was not contrary to our cases. The court identified the Witherspoon-Witt rule, recognized that our precedents required deference to the trial court, and applied an abuse-of-discretion standard. 132 Wash. 2d, at 601, 940 P. 2d, at 584. Having set forth that framework, it explained: “[Brown] did not object at trial to the State’s challenge of [Juror Z] for cause. At any rate, [Juror Z] was properly excused. On voir dire he indicated he would impose the death penalty where the defendant ‘would reviolate if released,’ which is not a correct statement of the law. He also misunderstood the State’s burden of proof . . . although he was corrected later. The trial court did not abuse its discretion in excusing [Juror Z] for cause.” Id., at 604, 940 P. 2d, at 585. The only fair reading of the quoted language is that the state court applied the Witt standard in assessing the excusal of Juror Z. Regardless, there is no requirement in a case involving the Witherspoon-Witt rule that a state appellate court make particular reference to the excusal of each juror. See Early v. Packer, 537 U. S. 3, 9 (2002) (per curiam). It is the trial court’s ruling that counts. B From our own review of the state trial court’s ruling, we conclude the trial court acted well within its discretion in granting the State’s motion to excuse Juror Z. Juror Z’s answers, on their face, could have led the trial court to believe that Juror Z would be substantially impaired in his ability to impose the death penalty in the absence of the possibility that Brown would be released and would reoffend. And the trial court, furthermore, is entitled to deference because it had an opportunity to observe the demeanor of Juror Z. We do not know anything about his demeanor, in part because a transcript cannot fully reflect that information but also because the defense did not object to Juror Z’s removal. Nevertheless, the State’s challenge, Brown’s waiver of an objection, and the trial court’s excusal of Juror Z support the conclusion that the interested parties present in the courtroom all felt that removing Juror Z was appropriate under the Witherspoon-Witt rule. See Darden, 477 U. S., at 178 (emphasizing the defendant’s failure to object and the judge’s decision not to engage in further questioning as evidence of impairment). Juror Z’s assurances that he would consider imposing the death penalty and would follow the law do not overcome the reasonable inference from his other statements that in fact he would be substantially impaired in this case because there was no possibility of release. His assurances did not require the trial court to deny the State’s motion to excuse Juror Z. The defense itself had told the trial court that any juror would make similar guarantees and that they were worth little; instead, defense counsel explained, the court should listen to arguments concerning the substance of the juror’s answers. The trial court in part relied, as diligent judges often must, upon both parties’ counsel to explain why a challenged juror’s problematic beliefs about the death penalty would not rise to the level of substantial impairment. Brown’s counsel offered no defense of Juror Z. In light of the deference owed to the trial court the position Brown now maintains does not convince us the decision to excuse Juror Z was unreasonable. It is true that in order to preserve a Witherspoon claim for federal habeas review there is no independent federal requirement that a defendant in state court object to the prosecution’s challenge; state procedural rules govern. We nevertheless take into account voluntary acquiescence to, or confirmation of, a juror’s removal. By failing to object, the defense did not just deny the conscientious trial judge an opportunity to explain his judgment or correct any error. It also deprived reviewing courts of further factual findings that would have helped to explain the trial court’s decision. The harm caused by a defendant’s failure to object to a juror’s excusal was described well by a Washington appellate court in a different case: “When a challenge for cause is made, opposing counsel can object either on the grounds that it is facially insufficient or that the facts needed to support it are not true. [Defendant] did neither. Had [defendant] objected immediately to the State’s challenge for cause, the court could have tried the issue and determined the law and facts. Because [defendant] did not timely object to the excusal of Juror 30, the court had no opportunity to remedy whatever factual questions were in the mind of [defendant’s] counsel.” State v. Taylor, No. 16057–2–III etc., 1998 WL 75648, *5 (Wash. App., Feb. 24, 1998) (unpublished opinion; citations omitted). The defense may have chosen not to object because Juror Z seemed substantially impaired. See 451 F. 3d, at 959 (Tallman, J., dissenting from denial of rehearing en banc). Or defense counsel may have felt that Juror Z, a basketball referee whose stepbrother was a police officer, would have been favorable to the State. See App. 68, 74; 451 F. 3d, at 953, n. 9 (reasoning that “defense counsel declined to object because he was glad to get rid of juror Z. After all, Z had described himself as pro-death penalty … . Defense counsel must have thanked his lucky stars when the prosecutor bumped Z”). Or the failure to object may have been an attempt to introduce an error into the trial because the defense realized Brown’s crimes were horrific and the mitigating evidence was weak. Although we do not hold that, because the defense may have wanted Juror Z on the jury, any error was harmless, neither must we treat the defense’s acquiescence in Juror Z’s removal as inconsequential. The defense’s volunteered comment that there was no objection is especially significant because of frequent defense objections to the excusal of other jurors and the trial court’s request that if both parties wanted a juror removed, saying so would expedite the process. In that context the statement was not only a failure to object but also an invitation to remove Juror Z. We reject the conclusion of the Court of Appeals that the excusal of Juror Z entitles Brown to federal habeas relief. The need to defer to the trial court’s ability to perceive jurors’ demeanor does not foreclose the possibility that a reviewing court may reverse the trial court’s decision where the record discloses no basis for a finding of substantial impairment. But where, as here, there is lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful voir dire, the trial court has broad discretion. The record does not show the trial court exceeded this discretion in excusing Juror Z; indeed the transcript shows considerable confusion on the part of the juror, amounting to substantial impairment. The Supreme Court of Washington recognized the deference owed to the trial court and, contrary to the Court of Appeals’ misreading of the state court’s opinion, identified the correct standard required by federal law and found it satisfied. That decision, like the trial court’s, was not contrary to, or an unreasonable application of, clearly established federal law. IV Brown raises two additional arguments that rely upon Washington state law. He first contends we should not consider his failure to object because Washington state law does not require a defendant to object to a challenge to a potential juror. See Tr. of Oral Arg. 35 (“As to the . . . failure to object . . . we have admitted that what [defense counsel] said was I have no objection. . . . But [they] all knew that this issue could be raised for the first time on appeal”). In addition he asserts that even if Juror Z’s statements indicated that he would base his decision upon the risk of Brown reoffending, that requirement was consistent with the state sentencing scheme. For the reasons explained above the defense’s failure to object in this case has significance to our analysis even on the assumption that state law did not require an objection to preserve an error for review in the circumstances of this case. The Supreme Court of Washington, however, noted Brown’s failure to object, suggesting it had significance for its own analysis. Brown, 132 Wash. 2d, at 604, 940 P. 2d, at 585. This is consistent with Washington law, which permits a party to “except” to the opposing party’s challenge of a juror for cause, Wash. Rev. Code 4.44.230 (2006), and gives appellate courts discretion to bar “any claim of error which was not raised in the trial court” unless that error is a “manifest error affecting a constitutional right,” Wash. Rule App. Proc. 2.5(a) (2006). See also 13 R. Ferguson, Washington Practice: Criminal Practice and Procedure §4908, p. 432 (3d ed. 2004) (“In general, issues not raised in the trial court will not be considered for the first time on appeal. It is the purpose of this general rule to give the trial court an opportunity to correct the alleged error. Accordingly, it is the duty of counsel to call the trial court’s attention to the alleged error …” (footnotes omitted)). The Supreme Court of Washington also held that Juror Z misstated Washington’s sentencing law. Brown, supra, at 604, 940 P. 2d, at 585. It is not for us to second-guess that determination, and our conclusion is, in any event, the same as that court’s. Juror Z did not say that the likelihood of Brown’s harming someone while in prison would be among his sentencing considerations. Rather, the sole reason Juror Z expressed for imposing the death penalty, in a case where the accused opposed it, was whether the defendant could be released and would reviolate. That is equivalent to treating the risk of recidivism as the sole aggravating factor, rather than treating lack of future dangerousness as a possible mitigating consideration. See Wash. Rev. Code §10.95.020 (2006) (setting forth aggravating factors); §10.95.070 (setting forth future dangerousness as one of eight mitigating factors). For these reasons, we are not persuaded to depart from the Supreme Court of Washington’s determination of the state law at issue or to ignore Brown’s failure to object. * * * Capital defendants have the right to be sentenced by an impartial jury. The State may not infringe this right by eliminating from the venire those whose scruples against the death penalty would not substantially impair the performance of their duties. Courts reviewing claims of Witherspoon-Witt error, however, especially federal courts considering habeas petitions, owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror. The Court of Appeals neglected to accord this deference. And on this record it was error to find that Juror Z was not substantially impaired. 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. APPENDIX TO OPINION OF THE COURT Excerpts of Verbatim Report of Proceedings (Voir Dire) (Nov. 3, 1993) in State v. Brown, Cause No. 91–1–03233–1 (Super. Ct. King Cty., Wash.), App. 57–75: THE COURT: All right. [Juror Z]. (Prospective Juror, [Juror Z], entered the courtroom.) THE COURT: That’s fine, [Juror Z]. Good afternoon. [JUROR Z]: Good afternoon. THE COURT: Do you have any questions at all about any of the preliminary instructions that you got this afternoon and the format that we were talking about or the reasons why the attorneys have to discuss the penalty phase when there may never really be a penalty phase. [JUROR Z]: No, I think I understand the situation. THE COURT: Did you answer or nod your head about remembering something about having heard this crime before? [JUROR Z]: No, I did not. THE COURT: Okay. We’ll start with the defense. MS. HUPP: Thank you, your Honor. VOIR DIRE EXAMINATION BY MS. HUPP: Q Good afternoon. My name is Lin-Marie Hupp, and I’m one of Cal Brown’s attorneys. I would like to start off asking you some questions about your feelings about the death penalty. I want to reinforce what the Judge has already told you, which is there are no right or wrong answers. We just need to get information about your feelings so we can do our job. A Okay. Q Can you tell me when it was you first realized this was a potential death penalty case? A Not until last Monday when I was here in the initial jury information session. Q Okay. Can you tell me when the Judge read that long thing to you and basically told you that this was a potential in the case, can you tell me what you were thinking when you heard that? A I guess I wasn’t surprised when I got the announcement for jury duty. And it was more than the standard two weeks that most everybody else goes to. I thought it must be a pretty substantial case. In my mind I tried to guess what it might be, so this is one of the things that entered into it. Q Can you give me an idea of what your general feelings about the death penalty are? A I do believe in the death penalty in severe situations. A good example might be the young man from, I believe he was from Renton that killed a couple of boys down in the Vancouver area and was sentenced to the death penalty, and wanted the death penalty. And I think it is appropriate in severe cases. Q And that case you’re talking about, that is the one where he actually came out, the defendant actually came out and said that he actually wanted to die? A I believe that was the case. Q Does that have any kind of bearing on your idea that the death penalty was appropriate in his case? A I believe that it was in that case. Q If you removed that factor completely from it, is that again the type of case that you think the death penalty would be appropriate? A It would have to be a severe case. I guess I can’t put a real line where that might be, but there are a lot of cases that I don’t think it’s where people would— Q Okay. And let me kind of fill in the blanks for myself here by just asking you a couple of questions about that. I’m assuming that there would not be any case other than murder that you would think the death penalty would be appropriate? A I think that is correct. Q Okay. And the way the law is in Washington anyway, in order to get to the point where you would even consider the death penalty, the State would first have to prove that you had committed a premeditate murder and one that had been thought about beforehand. Do you have any kind of feeling that something other than a premeditated murder, in other words, one that would have been planned that would be appropriate for the death penalty? A No. I think it would have to be premeditated. Q In addition to that in Washington even premeditated murders are not eligible for a potential death penalty unless the State also proves aggravating circumstances. In this case the State is alleging or is going to try and prove a number of aggravating circumstances, four of them. Okay. And the ones that they are going to try and prove are that the murder was committed, a premeditated murder was committed during a rape, a robbery, a kidnapping and that it was done in order to conceal a witness or eliminate a witness. Does that fall within the class of cases that you think the death penalty is appropriate? A I think that would be. Q Okay. Now, how about other sentencing options in a case like that, do you think that something other than the death penalty might be an appropriate sentence? A I think that if a person is temporarily insane or things of that that lead a person to do things that they would not normally do, I think that would enter into it. Q All right. Other than—well, maybe what we should do—the way that the law is in Washington, if the jury finds beyond a reasonable doubt that somebody has committed a premeditated murder with at least one aggravating circumstance, and in this case you have a potential for the four, then the jury reconvenes to consider whether or not the death penalty should be imposed or whether or not a life sentence without parole should be imposed. One sort of aside here, life without parole is exactly what it sounds like. It is a life sentence. You’re not ever eligible for parole. You hear about it in the papers sometimes where somebody has got a life sentence and they’re going to be eligible for parole in 10 years or 20 years. A I understand. Q Were you aware before that Washington has got this kind of sentence where it’s life without parole where you are not ever eligible for parole? A I did not until this afternoon. Q That is the two options that the jury has if they found the person guilty of premeditated murder beyond a reasonable doubt plus aggravating circumstances beyond a reasonable doubt. Do you think that you could consider both options? A Yes, I could. Q Could you give me an idea sort of have you thought about sort of the underlying reason why you think the death penalty is appropriate, what purpose it serves, that kind of thing? A I think if a person is, would be incorrigible and would reviolate if released, I think that’s the type of situation that would be appropriate. Q Okay. Now, knowing that you didn’t know before when you were coming to those opinions about the two options that we have here obviously somebody who is not going to get out of jail no matter which sentence you give them if you got to that point of making a decision about the sentence, does that mean what I’m hearing you say is that you could consider either alternative? A I believe so, yes. Q Now, in your, I think in your questionnaire you sort of referred to that also, what you kind of thought about was if somebody had been killed and it had been proven to you that they would kill again. Understanding that the two options there are life without parole or the death penalty, there is not a lot of likelihood that people are going to spend a lot of time talking about whether or not they’re going to kill again in the sentencing phase of this case. Is that going to make you frustrated? Are you going to want to hear about things like that, about people’s opinions in the penalty phase? A I’m not sure. Q Okay. That’s very fair. Do you have any kind of feelings about the frequency of the use of the death penalty in the United States today? Do you think it’s used too frequently or not often enough? A It seemed like there were several years when it wasn’t used at all and just recently it has become more prevalent in the news anyway. I don’t think it should never happen, and I don’t think it should happen 10 times a week either. I’m not sure what the appropriate number is but I think in severe situations, it is appropriate. Q It sounds like you’re a little more confortable that it is being used some of the time? A Yes. Q You weren’t happy with the time when it wasn’t being used at all? A I can’t say I was happy or unhappy, I just felt that there were times when it would be appropriate. Q Let me ask you, and we may have covered this already, but let me ask you just to make sure I understand. If the State were to prove beyond a reasonable doubt that the defendant had committed a premeditated murder with aggravating circumstances that I have laid out for you, rape, robbery, kidnapping, to conceal or eliminate a witness, at least one of those, in addition another thing you might hear in this trial is some evidence that the defendant deliberately inflicted pain upon the victim before she died for some period of time. If that was the crime that you heard about and came to a decision about guilty about, do you think you consider a life sentence? A I could consider it but I don’t know if I really have enough information to make a determination. Q Right. And it’s real tough to be asking you these questions and even tougher for you to have to answer them without any evidence before you. But you understand that this is our only time to do that before you have heard all the evidence? A I understand, yes. Q As a matter of fact, the law in this state after, even after you have found somebody guilty of really hideous crime like that presumes that the sentence, the appropriate sentence is life without parole. The State has the burden of proof, again, in the penalty phase. And they would have to prove beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit a life sentence. Are you comfortable with that idea that you start off presuming that, as a matter of fact, even for a hideous crime that a life sentence is the appropriate sentence? A It is or is not? Q That it is an appropriate sentence. A I guess I’m a little confused by the question. So, you go into it with a life sentence is the appropriate sentence? Q Right. If you look at the chart here, there’s almost a mirror image to start off a trial presuming that somebody is innocent and you start off a sentencing presuming that a life sentence is appropriate? A I see. Q Okay. A Yes. Q Okay. Now, as far as mitigating circumstances, you had mentioned the idea that maybe somebody was temporarily insane. The Judge is going to give you an instruction on mitigating circumstances, and I will defines it for you, but the definition is real broad. The definition basically is, any reason, not a justification, not an excuse for the crime and not a defense to the crime, but a reason for imposing something other than death. That’s pretty broad. MR. MATTHEWS: I object to that question. I don’t believe that is a question. I believe that’s a statement. THE COURT: The objection will be sustained. Q (BY MS. HUPP) The judge will instruct you about what a mitigating circumstance is. But what I want to be real clear about is that it’s not a defense to the crime. Okay. In other words, if you believe that somebody was really temporarily insane at the time he committed the offense, well, then it wouldn’t be premeditated. It would be an insanity defense, and that would all get dealt with— MR. MATTHEWS: Your Honor, again, I am going to object to the nature of the question. THE COURT: [Juror Z], you were the one that actually brought it up in terms of the mental status of the person. You are the one who said temporarily insane when they committed this kind of crime. You realize that there are particular defenses that may be available in the actual criminal case itself, the guilt phase. But once you get to the penalty phase, we’re not talking about the crime in any way, and you’re simply trying to determine what the appropriate punishment or sanction should be for a crime that a person has been found guilty of. At that point in time, something like all sorts of mitigating circumstances come into it, and mental status can come into it. But it would only be evaluated in the light of the mitigating circumstances, not a defense. Do you understand that? A Understand. Q (BY MS. HUPP) To just sort of follow up on that, if mental status came into play and you were presented with some sort of evidence about mental status, is that the sort of evidence you would consider? A Yes, I could. Q How about things like somebody’s childhood or their emotional development? A I could consider it. I don’t have strong feelings one way or the other. Q Okay. All right. And, also, when we talk about miti-gating circumstances, what might be mitigating to you might not matter much to the person sitting next to you in juror’s box. Do you think you could discuss your feelings about those things? A Yes. Q Could you, say the person next to you says something is mitigating and you don’t think it’s very mitigating at all, could you also discuss it in this situation? A (Nodding head). Q Could you respect that other person’s opinion? A Everybody is entitled to an opinion, yes. Q Another thing that happens at the sentencing phase of the trial is that the jury would have to be unanimous, in other words, everybody would have to agree if they were going to impose a death sentence. If one person, four people, five people, how ever many people don’t agree with that, then the sentence is life. Okay. So, it kind of strips away that sort of comfort in numbers that some people get from the idea of having a unanimous decision. Do you think you can accept the responsibility for such an important decision for yourself? A I do. Q Okay. Thank you. MS. HUPP: I have no further questions. THE COURT: The State. VOIR DIRE EXAMINATION BY MR. MATTHEWS: Q [Juror Z], I’m Al Matthews. I’m one of two prosecutors in the case. I have got some very specific questions, and perhaps we can clear them up real rapidly. I see your step-brother is a policeman and you see him about four times a year. A (Nodding head). Q Do you ever have any discussions about the death penalty, is this a subject that ever comes up? A No. Q Have you ever had occasion to discuss it at all within the family circle? A I don’t believe so. Q You mentioned on your questionnaire, and we do read them, that you’re in favor of the death penalty if it is proved beyond a shadow of a doubt if a person has killed and would kill again. Do you remember making that statement? A Yes. Q First of all, have you ever been on a jury trial before? A I have not. Q Now, you made this statement before you read your juror’s handbook I imagine? A Yes. Q So, I want to ask you, the thing that bothers me, of course, is the idea beyond a shadow of a doubt. The law says beyond a reasonable doubt, and it will be explained to you what it actually means. But I want to assure you it doesn’t mean, I don’t believe the Court would instruct would you it means beyond all doubt or beyond any shadow of a doubt. Knowing that, would you still require the State to prove beyond a shadow of a doubt that the crime occurred knowing that the law doesn’t require that much of us? A I would have to know the, I’m at a loss for the words here. Q You can ask me any questions, too, if you need some clarification. A I guess it would have to be in my mind very obvious that the person would reoffend. Q Well, we’re not talking about that, sir. A Or was guilty, yes. Q So, we’re talking about that? A Yes. Q So, you would be satisfied with a reasonable doubt standard? You would be willing to follow the law? A Yes. Q In other words, nothing, there is very few things in life absolutely certain? A I understand. Q And that is basically what we’re saying to you, and that is what the term reasonable doubt means— A (Nodding head). Q —that we don’t have to prove it beyond all doubt. Now, we get to the penalty phase and the question becomes slightly different. It presumes life as a person is presumed innocent in the guilt phase, it is presumed that the proper penalty for the beginning point in the penalty phase is life in prison without parole. Now, you mentioned that you would have to be satisfied that the person would not kill again. Now, you know that the possible, that the only two penalties are life in prison without parole or death. The person, if he is committed, if he is convicted of aggravated murder, is not going to be out on the streets again, not going to come in contact with the people that he had a chance to run into before. So, the likelihood of him killing someone out in the street is nil or practically nil at that point. I guess the reverse side of what you’re saying is, if you could be convinced that he wouldn’t kill again, would you find it difficult to vote for the death penalty given a situation where he couldn’t kill again? A I think I made that statement more under assumption that a person could be paroled. And it wasn’t until today that I became aware that we had a life without parole in the state of Washington. Q And now that you know there is such a thing and they do mean what they say, can you think of a time when you would be willing to impose a death penalty since the person would be locked up for the rest of his life? A I would have to give that some thought. I really, like I said, up until an hour ago did not realize that there was an option of life without parole. Q And I realize this is put on you rather suddenly, but you also recognize as someone who is representing the State in this case, we have made the election to ask that the jury if he is found guilty, ask that the jury vote for the death penalty. And I’m asking you a very important thing and to everyone in here, whether you, knowing that the person would never get out for the rest of his life, two things. And they’re slightly different. One, whether you could consider the death penalty and the second thing I would ask you is whether you could impose the death penalty. I’m not asking a promise or anything. But I’m asking you, first, could you consider it, and if you could consider it, do you think under the conditions where the man would never get out again you could impose it? A Yes, sir. Q So, this idea of him having to kill again to deserve the death penalty is something that you are not firm on, you don’t feel that now? A I do feel that way if parole is an option, without parole as an option. I believe in the death penalty. Like I said, I’m not sure that there should be a waiting line of people happening every day or every week even, but I think in severe situations it’s an appropriate measure. Q But in the situation where a person is locked up for the rest of his life and there is no chance of him ever getting out again, which would be the situation in this case, do you think you could also consider and vote for the death penalty under those circumstances? A I could consider it, yes. Q Then could you impose it? A I could if I was convinced that was the appropriate measure. MR. MATTHEWS: I have no further questions. THE COURT: All right. [Juror Z], there is something that I want to clarify in response to some of the questions that were asked of you. VOIR DIRE EXAMINATION BY THE COURT: Q In your questionnaire it talks about beyond a shadow of a doubt, and the prosecutor here went into that a little further. You realize that that is the standard that the law imposes on the State to prove a case beyond a reasonable doubt. And, obviously, that is a question of interpretation. You officiate basketball games. That’s in your questionnaire. You, even at the college level, knowing how fast that game is, you have to make a call on some of those calls and you have to decide whether to blow that whistle and make that particular call. Do you think you understand the difference between a reasonable call and beyond a shadow of a doubt type call? A I guess I do. The terminology beyond a shadow of a doubt, when I wrote that I wasn’t even sure whether, I mean, it’s just terminology that I have heard probably watching Perry Mason or something over the years. But I guess the point I was making that it has to be— Q You would have to be positive? A I would have to be positive, that’s correct. Q The State has to convince you? A Yes. Q As they would have to convince any reasonable person? A Yes. THE COURT: [Juror Z], let me have you step back into the juryroom. The bailiff will excuse you from there in just a few minutes. Thank you. Counsel, any challenge to this particular juror? MR. MATTHEWS: I would, your Honor, not on the term beyond a shadow of a doubt, I think he would certainly stick with the reasonable doubt standard. But I think he is very confused about the statements where he said that if a person can’t kill again, in other words, he’s locked up for the rest of his life, he said, basically, he could vote for the death penalty if it was proved beyond a shadow of. And I am certainly going to concede that he means beyond a reasonable doubt. And if a person kills and will kill again. And I think he has some real problems with that. He said he hadn’t really thought about it. And I don’t think at this period of time he’s had an opportunity to think about it, and I don’t think he said anything that overcame this idea of he must kill again before he imposed the death penalty or be in a position to kill again. So, that is my only challenge. MR. MULLIGAN: We have no objection. THE COURT: Counsel, the request of the prosecutor’s office, we will go ahead and excuse [Juror Z].
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549.US.384
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In January 1994, Chicago police arrested petitioner, a minor, for murder. He was tried and convicted, but the charges were ultimately dropped in April 2002. In April 2003, he filed this suit under 42 U. S. C. §1983 against the city and several of its officers, seeking damages for, inter alia, his unlawful arrest in violation of the Fourth Amendment. The District Court granted respondents summary judgment, and the Seventh Circuit affirmed, ruling that the §1983 suit was time barred because petitioner’s cause of action accrued at the time of his arrest, not when his conviction was later set aside. Held: The statute of limitations upon a §1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. Pp. 2–12. (a) The statute of limitations in a §1983 suit is that provided by the State for personal-injury torts, e.g., Owens v. Okure, 488 U. S. 235, 249–250; here, two years under Illinois law. For false imprisonment and its subspecies false arrest, “[t]he … cause[s] of action provid[ing] the closest analogy to claims of the type considered here,” Heck v. Humphrey, 512 U. S. 477, 484, the statute of limitations begins to run when the alleged false imprisonment ends, see, e.g., 4 Restatement (Second) of Torts §899, Comment c, that is, in the present context, when the victim becomes held pursuant to legal process, see, e.g., Heck, supra, at 484. Thus, petitioner’s false imprisonment did not end, as he contends, when he was released from custody after the State dropped the charges against him, but rather when he appeared before the examining magistrate and was bound over for trial. Since more than two years elapsed between that date and the filing of this suit—even leaving out of the count the period before he reached his majority—the action was time barred. Pp. 2–7. (b) Petitioner’s contention that Heck compels the conclusion that his suit could not accrue until the State dropped its charges against him is rejected. The Heck Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a §1983 plaintiff must prove that the conviction or sentence has been [set aside]. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under §1983.” 512 U. S., at 486–487. Even assuming that the Heck deferred-accrual rule would be applied to the date petitioner was first held pursuant to legal process, there was in existence at that time no criminal conviction that the cause of action would impugn. What petitioner seeks is the adoption of a principle going well beyond Heck: that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside. The impracticality of such a speculative rule is obvious. The fact that §1983 actions sometimes accrue before the setting aside of—indeed, even before the existence of—the related criminal conviction raises the question whether, assuming the Heck bar takes effect when the later conviction is obtained, the statute of limitations on the once valid cause of action is tolled as long as the Heck bar subsists. However, this Court generally refers to state-law tolling rules, e.g., Hardin v. Straub, 490 U. S. 536, 538–539, and is unaware of Illinois cases providing tolling in even remotely comparable circumstances. Moreover, a federal tolling rule to this effect would create a jurisprudential limbo in which it would not be known whether tolling is appropriate by reason of the Heck bar until it is established that the newly entered conviction would be impugned by the not-yet-filed, and thus utterly indeterminate, §1983 claim. Pp. 7–12. 440 F. 3d 421, affirmed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Souter, J., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined.
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Petitioner filed suit under Rev. Stat. §1979, 42 U. S. C. §1983, seeking damages for an arrest that violated the Fourth Amendment. We decide whether his suit is timely. I On January 17, 1994, John Handy was shot to death in the city of Chicago. Sometime around 8 p.m. two days later, Chicago police officers located petitioner, then 15 years of age, and transported him to a police station for questioning. After interrogations that lasted into the early morning hours the next day, petitioner agreed to confess to Handy’s murder. An assistant state’s attorney prepared a statement to this effect, and petitioner signed it, at the same time waiving his Miranda rights. Prior to trial in the Circuit Court of Cook County, petitioner unsuccessfully attempted to suppress his station house statements as the product of an unlawful arrest. He was convicted of first-degree murder and sentenced to 26 years in prison. On direct appeal, the Appellate Court of Illinois held that officers had arrested petitioner without probable cause, in violation of the Fourth Amendment. People v. Wallace, 299 Ill. App. 3d 9, 17–18, 701 N. E. 2d 87, 94 (1998). According to that court (whose determination we are not reviewing here), even assuming petitioner willingly accompanied police to the station, his presence there “escalated to an involuntary seizure prior to his formal arrest.” Id., at 18, 701 N. E. 2d, at 94. After another round of appeals, the Appellate Court concluded on August 31, 2001, that the effect of petitioner’s illegal arrest had not been sufficiently attenuated to render his statements admissible, see Brown v. Illinois, 422 U. S. 590 (1975), and remanded for a new trial. Judgt. order reported sub nom. People v. Wallace, 324 Ill. App. 3d 1139, 805 N. E. 2d 756 (2001). On April 10, 2002, prosecutors dropped the charges against petitioner. On April 2, 2003, petitioner filed this §1983 suit against the city of Chicago and several Chicago police officers, seeking damages arising from, inter alia, his unlawful arrest.[Footnote 1] The District Court granted summary judgment to respondents and the Court of Appeals affirmed. According to the Seventh Circuit, petitioner’s §1983 suit was time barred because his cause of action accrued at the time of his arrest, and not when his conviction was later set aside. Wallace v. Chicago, 440 F. 3d 421, 427 (2006). We granted certiorari, 547 U. S. ___ (2006). II Section 1983 provides a federal cause of action, but in several respects relevant here federal law looks to the law of the State in which the cause of action arose. This is so for the length of the statute of limitations: It is that which the State provides for personal-injury torts. Owens v. Okure, 488 U. S. 235, 249–250 (1989); Wilson v. Garcia, 471 U. S. 261, 279–280 (1985). The parties agree that under Illinois law, this period is two years. Ill. Comp. Stat., ch. 735, §5/13–202 (West 2003). Thus, if the statute on petitioner’s cause of action began to run at the time of his unlawful arrest, or even at the time he was ordered held by a magistrate, his §1983 suit was plainly dilatory, even according him tolling for the two-plus years of his minority, see §5/13–211. But if, as the dissenting judge argued below, the commencement date for running of the statute is governed by this Court’s decision in Heck v. Humphrey, 512 U. S. 477 (1994), that date may be the date on which petitioner’s conviction was vacated, in which case the §1983 suit would have been timely filed. While we have never stated so expressly, the accrual date of a §1983 cause of action is a question of federal law that is not resolved by reference to state law. The parties agree, the Seventh Circuit in this case so held, see 440 F. 3d, at 424, and we are aware of no federal court of appeals holding to the contrary. Aspects of §1983 which are not governed by reference to state law are governed by federal rules conforming in general to common-law tort principles. See Heck, supra, at 483; Carey v. Piphus, 435 U. S. 247, 257–258 (1978). Under those principles, it is “the standard rule that [accrual occurs] when the plaintiff has ‘a complete and present cause of action.’ ” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997) (quoting Rawlings v. Ray, 312 U. S. 96, 98 (1941)), that is, when “the plaintiff can file suit and obtain relief,” Bay Area Laundry, supra, at 201. There can be no dispute that petitioner could have filed suit as soon as the allegedly wrongful arrest occurred, subjecting him to the harm of involuntary detention, so the statute of limitations would normally commence to run from that date. There is, however, a refinement to be considered, arising from the common law’s distinctive treatment of the torts of false arrest and false imprisonment, “[t]he … cause[s] of action [that] provid[e] the closest analogy to claims of the type considered here,” Heck, supra, at 484. See 1 D. Dobbs, Law of Torts §47, p. 88 (2001). False arrest and false imprisonment overlap; the former is a species of the latter. “Every confinement of the person is an imprisonment, whether it be in a common prison or in a private house, or in the stocks, or even by forcibly detaining one in the public streets; and when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is.” M. Newell, Law of Malicious Prosecution, False Imprisonment, and Abuse of Legal Process §2, p. 57 (1892) (footnotes omitted). See also 7 S. Speiser, C. Krause, & A. Gans, American Law of Torts §27:2, pp. 940–942 (1990). We shall thus refer to the two torts together as false imprisonment. That tort provides the proper analogy to the cause of action asserted against the present respondents for the following reason: The sort of unlawful detention remediable by the tort of false imprisonment is detention without legal process, see, e.g., W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §11, p. 54, §119, pp. 885–886 (5th ed. 1984); 7 Speiser, supra, §27:2, at 943–944, and the allegations before us arise from respondents’ detention of petitioner without legal process in January 1994. They did not have a warrant for his arrest. The running of the statute of limitations on false imprisonment is subject to a distinctive rule—dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: “Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.” 2 H. Wood, Limitation of Actions §187d(4), p. 878 (4th rev. ed. 1916); see also 4 Restatement (Second) of Torts §899, Comment c (1977); A. Underhill, Principles of Law of Torts 202 (1881). Thus, to determine the beginning of the limitations period in this case, we must determine when petitioner’s false imprisonment came to an end. Reflective of the fact that false imprisonment consists of detention without legal process, a false imprisonment ends once the victim becomes held pursuant to such process—when, for example, he is bound over by a magistrate or arraigned on charges. Dobbs, supra, §39, at 74, n. 2; Keeton, supra, §119, at 888; H. Stephen, Actions for Malicious Prosecution 120–123 (1888). Thereafter, unlawful detention forms part of the damages for the “entirely distinct” tort of malicious prosecution, which remedies detention accompanied, not by absence of legal process, but by wrongful institution of legal process.[Footnote 2] Keeton, supra, §119, at 885–886; see 1 F. Harper, F. James, & O. Gray, Law of Torts §3.9, p. 3:36 (3d ed. 1996); 7 Speiser, supra, §27:2, at 943–945. “If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more. From that point on, any damages recoverable must be based on a malicious prosecution claim and on the wrongful use of judicial process rather than detention itself.” Keeton, supra, §119, at 888; see also Heck, supra, at 484; 8 Speiser, supra, §28:15, at 80. Thus, petitioner’s contention that his false imprisonment ended upon his release from custody, after the State dropped the charges against him, must be rejected. It ended much earlier, when legal process was initiated against him, and the statute would have begun to run from that date, but for its tolling by reason of petitioner’s minority.[Footnote 3] Petitioner asserts that the date of his release from custody must be the relevant date in the circumstances of the present suit, since he is seeking damages up to that time. The theory of his complaint is that the initial Fourth Amendment violation set the wheels in motion for his subsequent conviction and detention: The unlawful arrest led to the coerced confession, which was introduced at his trial, producing his conviction and incarceration. As we have just explained, at common law damages for detention after issuance of process or arraignment would be attributable to a tort other than the unlawful arrest alleged in petitioner’s complaint—and probably a tort chargeable to defendants other than the respondents here. Even assuming, however, that all damages for detention pursuant to legal process could be regarded as consequential damages attributable to the unlawful arrest, that would not alter the commencement date for the statute of limitations. “Under the traditional rule of accrual … the tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages. The cause of action accrues even though the full extent of the injury is not then known or predictable.” 1 C. Corman, Limitation of Actions §7.4.1, pp. 526–527 (1991) (footnotes omitted); see also 54 C. J. S., Limitations of Actions §112, p. 150 (2005). Were it otherwise, the statute would begin to run only after a plaintiff became satisfied that he had been harmed enough, placing the supposed statute of repose in the sole hands of the party seeking relief. We conclude that the statute of limitations on petitioner’s §1983 claim commenced to run when he appeared before the examining magistrate and was bound over for trial. Since more than two years elapsed between that date and the filing of this suit—even leaving out of the count the period before he reached his majority—the action was time barred. III This would end the matter, were it not for petitioner’s contention that Heck v. Humphrey, 512 U. S., at 477, compels the conclusion that his suit could not accrue until the State dropped its charges against him. In Heck, a state prisoner filed suit under §1983 raising claims which, if true, would have established the invalidity of his outstanding conviction. We analogized his suit to one for malicious prosecution, an element of which is the favorable termination of criminal proceedings. Id., at 484. We said: “[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a §1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U. S. C. §2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under §1983.” Id., at 486–487 (footnote omitted). We rested this conclusion upon “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Id., at 486. “ ‘Congress,’ ” we said, “ ‘has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of §1983.’ ” Id., at 482 (quoting Preiser v. Rodriguez, 411 U. S. 475, 490 (1973)). As the above excerpts show, the Heck rule for deferred accrual is called into play only when there exists “a conviction or sentence that has not been … invalidated,” that is to say, an “outstanding criminal judgment.” It delays what would otherwise be the accrual date of a tort action until the setting aside of an extant conviction which success in that tort action would impugn. We assume that, for purposes of the present tort action, the Heck principle would be applied not to the date of accrual but to the date on which the statute of limitations began to run, that is, the date petitioner became held pursuant to legal process. See supra, at 4–5. Even at that later time, there was in existence no criminal conviction that the cause of action would impugn; indeed, there may not even have been an indictment. What petitioner seeks, in other words, is the adoption of a principle that goes well beyond Heck: that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside. The impracticality of such a rule should be obvious. In an action for false arrest it would require the plaintiff (and if he brings suit promptly, the court) to speculate about whether a prosecution will be brought, whether it will result in conviction, and whether the pending civil action will impugn that verdict, see Heck, 512 U. S., at 487, n. 7—all this at a time when it can hardly be known what evidence the prosecution has in its possession. And what if the plaintiff (or the court) guesses wrong, and the anticipated future conviction never occurs, because of acquittal or dismissal? Does that event (instead of the Heck-required setting aside of the extant conviction) trigger accrual of the cause of action? Or what if prosecution never occurs—what will the trigger be then? We are not disposed to embrace this bizarre extension of Heck. If a plaintiff files a false arrest claim before he has been convicted (or files any other claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended. See id., at 487–488, n. 8 (noting that “abstention may be an appropriate response to the parallel state-court proceedings”); Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 730 (1996). If the plaintiff is ultimately convicted, and if the stayed civil suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will proceed, absent some other bar to suit. Edwards v. Balisok, 520 U. S. 641, 649 (1997); Heck, 512 U. S., at 487. There is, however, one complication that we must address here. It arises from the fact that §1983 actions, unlike the tort of malicious prosecution which Heck took as its model, see id., at 484, sometimes accrue before the setting aside of—indeed, even before the existence of—the related criminal conviction. That of course is the case here, and it raises the question whether, assuming that the Heck bar takes effect when the later conviction is obtained, the statute of limitations on the once valid cause of action is tolled as long as the Heck bar subsists. In the context of the present case: If petitioner’s conviction on April 19, 1996, caused the statute of limitations on his (possibly) impugning but yet-to-be-filed cause of action to be tolled until that conviction was set aside, his filing here would have been timely. We have generally referred to state law for tolling rules, just as we have for the length of statutes of limitation. Hardin v. Straub, 490 U. S. 536, 538–539 (1989); Board of Regents of Univ. of State of N. Y. v. Tomanio, 446 U. S. 478, 484–486 (1980). Petitioner has not brought to our attention, nor are we aware of, Illinois cases providing tolling in even remotely comparable circumstances. (Indeed, petitioner did not even argue for such tolling below, though he supported its suggestion at oral argument.) Nor would we be inclined to adopt a federal tolling rule to this effect. Under such a regime, it would not be known whether tolling is appropriate by reason of the Heck bar until it is established that the newly entered conviction would be impugned by the not-yet-filed, and thus utterly indeterminate, §1983 claim.[Footnote 4] It would hardly be desirable to place the question of tolling vel non in this jurisprudential limbo, leaving it to be determined by those later events, and then pronouncing it retroactively. Defendants need to be on notice to preserve beyond the normal limitations period evidence that will be needed for their defense; and a statute that becomes retroactively extended, by the action of the plaintiff in crafting a conviction-impugning cause of action, is hardly a statute of repose.[Footnote 5] Justice Breyer argues in dissent that equitable tolling should apply “so long as the issues that [a §1983] claim would raise are being pursued in state court.” Post, at 4. We know of no support (nor does the dissent suggest any) for the far-reaching proposition that equitable tolling is appropriate to avoid the risk of concurrent litigation. As best we can tell, the only rationale for such a rule is the concern that “petitioner would have had to divide his attention between criminal and civil cases.” Post, at 1. But when has it been the law that a criminal defendant, or a potential criminal defendant, is absolved from all other responsibilities that the law would otherwise place upon him? If a defendant has a breach-of-contract claim against the prime contractor for his new home, is he entitled to tolling for that as well while his criminal case is pending? Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs. Besides its never-heard-of-before quality, the dissent’s proposal suffers from a more ironic flaw. Although the dissent criticizes us for having to develop a system of stays and dismissals, it should be obvious that the omnibus tolling solution will require the same. Despite the existence of the new tolling rule, some (if not most) plaintiffs will nevertheless file suit before or during state criminal proceedings. How does the dissent propose to handle such suits? Finally, the dissent’s contention that law enforcement officers would prefer the possibility of a later §1983 suit to the more likely reality of an immediate filing, post at 5, is both implausible and contradicted by those who know best. As no fewer than 11 States have informed us in this litigation, “States and municipalities have a strong interest in timely notice of alleged misconduct by their agents.” Brief for State of Illinois et al. as Amici Curiae 18. * * * We hold that the statute of limitations upon a §1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. Since in the present case this occurred (with appropriate tolling for the plaintiff’s minority) more than two years before the complaint was filed, the suit was out of time. The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 All of petitioner’s other state and federal claims were resolved adversely to him and are not before us. We expressly limited our grant of certiorari to the Fourth Amendment false-arrest claim. See 547 U. S. ___ (2006). The city of Chicago is no longer a party to this suit. Footnote 2 We have never explored the contours of a Fourth Amendment malicious-prosecution suit under §1983, see Albright v. Oliver, 510 U. S. 266, 270–271, 275 (1994) (plurality opinion), and we do not do so here. See generally 1 M. Schwartz, Section 1983 Litigation §3.18[C], pp. 3–605 to 3–629 (4th ed. 2004) (noting a range of approaches in the lower courts). Assuming without deciding that such a claim is cognizable under §1983, petitioner has not made one. Petitioner did not include such a claim in his complaint. He in fact abandoned a state-law malicious-prosecution claim in the District Court, and stated, in his opposition to respondents’ first motion for summary judgment, that “Plaintiff does not seek to raise … a malicious prosecution claim under §1983,” Record, Doc. 17, p. 3, n. 5. In this Court, he has told us that respondents are “mistaken in characterizing petitioner’s cause of action as involving ‘unwarranted prosecution.’ ” Reply Brief 12. Footnote 3 This is not to say, of course, that petitioner could not have filed suit immediately upon his false arrest. While the statute of limitations did not begin to run until petitioner became detained pursuant to legal process, he was injured and suffered damages at the moment of his arrest, and was entitled to bring suit at that time. See Adler v. Beverly Hills Hospital, 594 S. W. 2d 153, 156 (Tex. Civ. App. 1980) (“We may concede that a person falsely imprisoned has the right to sue on the first day for his detention”). Footnote 4 Had petitioner filed suit upon his arrest and had his suit then been dismissed under Heck, the statute of limitations, absent tolling, would have run by the time he obtained reversal of his conviction. If under those circumstances he were not allowed to refile his suit, Heck would produce immunity from §1983 liability, a result surely not intended. Because in the present case petitioner did not file his suit within the limitations period, we need not decide, had he done so, how much time he would have had to refile the suit once the Heck bar was removed. Footnote 5 Justice Stevens reaches the same result by arguing that, under Stone v. Powell, 428 U. S. 465 (1976), the Heck bar can never come into play in a §1983 suit seeking damages for a Fourth Amendment violation, so that “a habeas remedy was never available to [petitioner] in the first place.” Post, at 3 (opinion concurring in judgment). This reads Stone to say more than it does. Under Stone, Fourth Amendment violations are generally not cognizable on federal habeas, but they are cognizable when the State has failed to provide the habeas petitioner “an opportunity for full and fair litigation of a Fourth Amendment claim.” 428 U. S., at 482. Federal habeas petitioners have sometimes succeeded in arguing that Stone’s general prohibition does not apply. See, e.g., Herrera v. LeMaster, 225 F. 3d 1176, 1178 (2000), aff’d on this point, 301 F. 3d 1192, 1195, n. 4 (CA10 2002) (en banc); United States ex rel. Bostick v. Peters, 3 F. 3d 1023, 1029 (CA7 1993); Agee v. White, 809 F. 2d 1487, 1490 (CA11 1987); Doescher v. Estelle, 666 F. 2d 285, 287 (CA5 1982); Boyd v. Mintz, 631 F. 2d 247, 250–251 (CA3 1980); see also 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §§27.1–27.3, pp. 1373–1389 (5th ed. 2005). At the time of a Fourth Amendment wrong, and at the time of conviction, it cannot be known whether a prospective §1983 plaintiff will receive a full and fair opportunity to litigate his Fourth Amendment claim. It thus remains the case that a conflict with the federal habeas statute is possible, that a Fourth Amendment claim can necessarily imply the invalidity of a conviction, and that if it does it must, under Heck, be dismissed. Insofar as Justice Stevens simply suggests that Heck has no bearing here because petitioner received a full and fair opportunity to litigate his Fourth Amendment claim in state court, the argument is equally untenable. At the time that petitioner became detained pursuant to legal process, it was impossible to predict whether this would be true. And even at the point when his limitations period ended, state proceedings on his conviction were ongoing; full and fair opportunity up to that point was not enough. Stone requires full and fair opportunity to litigate a Fourth Amendment claim “at trial and on direct review.” 428 U. S., at 494–495, n. 37 (emphasis added).
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551.US.142
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Petitioners filed a state-court suit claiming that respondents (Philip Morris) violated Arkansas unfair business practice laws by advertising certain cigarette brands as “light” when, in fact, Philip Morris had manipulated testing results to register lower levels of tar and nicotine in the advertised cigarettes than would be delivered to consumers. Philip Morris removed the case to Federal District Court under the federal officer removal statute, which permits removal of an action against “any officer (or any person acting under that officer) of the United States or of any agency thereof,” 28 U. S. C. §1442(a)(1) (emphasis added). The federal court upheld the removal, ruling that the complaint attacked Philip Morris’ use of the Government’s method of testing cigarettes and thus that petitioners had sued Philip Morris for “acting under” the Federal Trade Commission. The Eighth Circuit affirmed, emphasizing the FTC’s detailed supervision of the cigarette testing process and likening the case to others in which lower courts permitted removal by heavily supervised Government contractors. Held: The fact that a federal agency directs, supervises, and monitors a company’s activities in considerable detail does not bring that company within §1442(a)(1)’s scope and thereby permit removal. Pp. 3–14. (a) Section 1442(a)(1)’s words “acting under” are broad, and the statute must be “liberally construed.” Colorado v. Symes, 286 U. S. 510, 517. But broad language is not limitless. And a liberal construction nonetheless can find limits in a text’s language, context, history, and purposes. The statute’s history and this Court’s cases demonstrate that its basic purpose is to protect the Federal Government from the interference with its “operations” that would ensue were a State able, for example, to “arres[t]” and bring “to trial in a State cour[t] for an alleged offense against the law of the State,” “officers and agents” of the Government “acting … within the scope of their authority.” Willingham v. Morgan, 395 U. S. 402, 406 (internal quotation marks omitted). State-court proceedings may reflect “local prejudice” against unpopular federal laws or officials, e.g., Maryland v. Soper, 270 U. S. 9, 32, and States hostile to the Government may impede enforcement of federal law, see, e.g., Tennessee v. Davis, 100 U. S. 257, 263, or deprive federal officials of a federal forum in which to assert federal immunity defenses, see, e.g., Willingham, supra, at 407. The removal statute applies to private persons “who lawfully assist” a federal officer “in the performance of his official duty,” Davis v. South Carolina, 107 U. S. 597, 600, but “only” if the private parties were “authorized to act with or for [federal officers or agents] in affirmatively executing duties under … federal law,” City of Greenwood v. Peacock, 384 U. S. 808, 824. Pp. 3–7. (b) The relevant relationship here is that of a private person “acting under” a federal “officer” or “agency.” §1442(a)(1) (emphasis added). In this context, “under” must refer to what the dictionaries describe as a relationship involving acting in a certain capacity, considered in relation to one holding a superior position or office, and typically includes subjection, guidance, or control. Precedent and statutory purpose also make clear that the private person’s “acting under” must involve an effort to assist, or to help carry out, the federal superior’s duties or tasks. See, e.g., Davis v. South Carolina, supra, at 600. Such aid does not include simply complying with the law. When a company complies with a regulatory order, it does not ordinarily create a significant risk of state-court “prejudice.” Cf. Soper, supra, at 32. A state-court suit brought against such a company is not likely to disable federal officials from taking necessary action designed to enforce federal law, cf. Tennessee v. Davis, supra, at 262–263, nor to deny a federal forum to an individual entitled to assert a federal immunity claim, see, e.g., Willingham, supra, at 407. Thus, a private firm’s compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase “acting under” a federal “official,” even if the regulation is highly detailed and even if the private firm’s activities are highly supervised and monitored. A contrary determination would expand the statute’s scope considerably, potentially bringing within it state-court actions filed against private firms in many highly regulated industries. Nothing in the statute’s language, history, or purpose indicates a congressional intent to do so. Pp. 7–9. (c) Philip Morris’ two arguments to the contrary are rejected. First, it contends that if close supervision is sufficient to turn a Gov- ernment contractor into a private firm “acting under” a Government “agency” or “officer,” as lower courts have held, it is sufficient to transform a company subjected to intense regulation. The answer to this argument is that the assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps the officers fulfill other basic governmental tasks. Second, Philip Morris argues that it is “acting under” FTC officers when it conducts cigarette testing because, after initially testing cigarettes for tar and nicotine, the FTC delegated authority for that task to the tobacco industry in 1987 and has thereafter extensively supervised and closely monitored testing. This argument contains a fatal flaw of omission. Although it uses the word “delegation,” there is no evidence of any delegation of legal authority from the FTC to the tobacco industry to undertake testing on the Government agency’s behalf, or evidence of any contract, payment, employer/employee relationship, or principal/agent arrangement. The existence of detailed FTC rules indicates regulation, not delegation. The usual regulator/regulated relationship cannot be construed as bringing Philip Morris within the statute’s terms. Pp. 9–14. 420 F. 3d 852, reversed and remanded. Breyer, J., delivered the opinion for a unanimous Court.
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The federal officer removal statute permits a defendant to remove to federal court a state-court action brought against the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office … .” 28 U. S. C. §1442(a)(1) (emphasis added). The question before us is whether the fact that a federal regulatory agency directs, supervises, and monitors a company’s activities in considerable detail brings that company within the scope of the italicized language (“acting under” an “officer” of the United States) and thereby permits removal. We hold that it does not. I Lisa Watson and Loretta Lawson, the petitioners, filed a civil lawsuit in Arkansas state court claiming that the Philip Morris Companies, the respondents, violated state laws prohibiting unfair and deceptive business practices. The complaint focuses upon advertisements and packaging that describe certain Philip Morris brand cigarettes (Marlboro and Cambridge Lights) as “light,” a term indicating lower tar and nicotine levels than those present in other cigarettes. More specifically, the complaint refers to the design and performance of Philip Morris cigarettes that are tested in accordance with the Cambridge Filter Method, a method that “the tobacco industry [uses] to ‘measure’ tar and nicotine levels in cigarettes.” App. to Pet. for Cert. 63a–64a. The complaint charges that Philip Morris “manipulat[ed] the design” of its cigarettes, and “employ[ed] techniques that” would cause its cigarettes “to register lower levels of tar and nicotine on [the Cambridge Filter Method] than would be delivered to the consumers of the product.” Id., at 63a–65a. The complaint adds that the Philip Morris cigarettes delivered “greater amounts of tar and nicotine when smoked under actual conditions” than the adjective “light” as used in its advertising indicates. Id., at 65a. In view of these and other related practices, the complaint concludes that Philip Morris’ behavior was “deceptive and misleading” under Arkansas law. Id., at 64a, 66a. Philip Morris, referring to the federal officer removal statute, removed the case to Federal District Court. That court, in turn, held that the statute authorized the removal. The court wrote that the complaint attacked Philip Morris’ use of the Government’s method of testing cigarettes. For this reason (and others), it held that the petitioners had sued Philip Morris for “act[s]” taken “under” the Federal Trade Commission, a federal agency (staffed by federal “officer[s]”). The District Court certified the question for interlocutory review. And the United States Court of Appeals for the Eighth Circuit affirmed. Like the District Court, it emphasized the FTC’s detailed supervision of the cigarette testing process. It also cited lower court cases permitting removal by heavily supervised Government contractors. See 420 F. 3d 852, 857 (2005); Winters v. Diamond Shamrock Chemical Co., 149 F. 3d 387 (CA5 1998) (authorizing removal of a tort suit against private defense contractors that manufactured Agent Orange). The Eighth Circuit concluded that Philip Morris was “acting under” federal “officer[s],” namely the FTC, with respect to the challenged conduct. 420 F. 3d, at 854. We granted certiorari. 549 U. S. ___ (2007). And we now reverse the Eighth Circuit’s determination. II The federal statute permits removal only if Philip Morris, in carrying out the “act[s]” that are the subject of the petitioners’ complaint, was “acting under” any “agency” or “officer” of “the United States.” 28 U. S. C. §1442(a)(1). The words “acting under” are broad, and this Court has made clear that the statute must be “liberally construed.” Colorado v. Symes, 286 U. S. 510, 517 (1932); see Arizona v. Manypenny, 451 U. S. 232, 242 (1981); Willingham v. Morgan, 395 U. S. 402, 406–407 (1969). But broad language is not limitless. And a liberal construction nonetheless can find limits in a text’s language, context, history, and purposes. Beginning with history, we note that Congress enacted the original federal officer removal statute near the end of the War of 1812, a war that was not popular in New England. See id., at 405. Indeed, shipowners from that region filed many state-court claims against federal customs officials charged with enforcing a trade embargo with England. See Wiecek, The Reconstruction of Federal Judicial Power, 1863–1875, 13 Am. J. Legal Hist. 333, 337 (1969). Congress responded with a provision that permitted federal customs officers and “any other person aiding or assisting” those officers to remove a case filed against them “in any state court” to federal court. Customs Act of 1815, ch. 31, §8, 3 Stat. 198 (emphasis added). This initial removal statute was “[o]bviously … an attempt to protect federal officers from interference by hostile state courts.” Willingham, 395 U. S., at 405. In the early 1830’s, South Carolina passed a Nullification Act declaring federal tariff laws unconstitutional and authorizing prosecution of the federal agents who collected the tariffs. See ibid. Congress then enacted a new statute that permitted “any officer of the United States, or other person” to remove to federal court a lawsuit filed against the officer “for or on account of any act done under the revenue laws of the United States.” Act of Mar. 2, 1833, ch. 57, §3, 4 Stat. 633 (emphasis added). As Senator Daniel Webster explained at the time, where state courts might prove hostile to federal law, and hence to those who enforced that law, the removal statute would “give a chance to the [federal] officer to defend himself where the authority of the law was recognised.” 9 Cong. Deb. 461 (1833). Soon after the Civil War, Congress enacted yet another officer removal statute, permitting removal of a suit against any revenue officer “on account of any act done under color of his office” by the revenue officer and “any person acting under or by authority of any such officer.” Act of July 13, 1866, ch. 184, §67, 14 Stat. 171 (emphasis added). Elsewhere the statute restricted these latter persons to those engaged in acts “for the collection of taxes.” §67, id., at 172. In 1948, Congress again revised the statute, dropping its limitation to the revenue context. And it included the rewritten statute within its 1948 recodification. See Act of June 25, 1948, ch. 646, §1442(a), 62 Stat. 938, 28 U. S. C. §1442(a). It is this version of the statute that, with the exception of a modification in response to this Court’s decision in International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. 72 (1991), is now before us. While Congress expanded the statute’s coverage to include all federal officers, it nowhere indicated any intent to change the scope of words, such as “acting under,” that described the triggering relationship between a private entity and a federal officer. Turning to precedent, we point to three cases, all involving illegal liquor, which help to illustrate the need for, and the workings of, the pre-1948 removal statutes. In 1878, a federal revenue officer, James Davis, raided an illegal distillery in Tennessee; was ambushed by several armed men; returned the ambushers’ gunfire; and shot one of his attackers dead. See Tennessee v. Davis, 100 U. S. 257, 261 (1880). Tennessee indicted Davis for murder. The Court held that the statute permitted Davis to remove the case to federal court, reasoning that the Federal Government “can act only through its officers and agents, and they must act within the States.” Id., at 263. Removal, the Court found, would help to prevent hostile States from “paralyz[ing]” the Federal Government and its initiatives. Ibid. About the same time, a U. S. Army corporal (also called Davis, Lemuel Davis) along with several other soldiers helped a federal revenue officer try to arrest a distiller for violating the internal-revenue laws. The soldiers surrounded the house; the distiller escaped through a hole in a side wall; Corporal Davis shot the suspect; and South Carolina indicted Davis for murder. Davis removed the case, and this Court upheld the removal. The Court acknowledged that, although Davis was not a revenue officer, he was a person “who lawfully assist[ed]” a revenue officer “in the performance of his official duty.” Davis v. South Carolina, 107 U. S. 597, 600 (1883). In the 1920’s, Maryland charged a group of prohibition agents and a private person acting as their driver with a murder committed during a distillery raid. See Maryland v. Soper, 270 U. S. 9 (1926). The prohibition agents and their driver sought to remove the state murder trial to federal court. This Court ultimately rejected their removal efforts for reasons not relevant here. But in doing so it pointed out that the private person acting “as a chauffeur and helper to the four officers under their orders and … direction” had “the same right to the benefit of” the removal provision as did the federal agents. Id., at 30. Apart from demonstrating the dangers associated with working in the illegal alcohol business, these three cases—Tennessee v. Davis, Davis v. South Carolina, and Maryland v. Soper—illustrate that the removal statute’s “basic” purpose is to protect the Federal Government from the interference with its “operations” that would ensue were a State able, for example, to “arres[t]” and bring “to trial in a State cour[t] for an alleged offense against the law of the State,” “officers and agents” of the Federal Government “acting … within the scope of their authority.” Willingham, 395 U. S., at 406 (internal quotation marks omitted). See also ibid. (noting that the “purpose” of the statute “is not hard to discern”). State-court proceedings may reflect “local prejudice” against unpopular federal laws or federal officials. Soper, supra, at 32; see Manypenny, 451 U. S., at 242 (noting that removal permits trials to occur free from “local … prejudice”). In addition, States hostile to the Federal Government may impede through delay federal revenue collection or the enforcement of other federal law. See Tennessee v. Davis, supra, at 263; cf. Findley v. Satterfield, 9 F. Cas. 67, 68 (No. 4,792) (CC ND Ga. 1877). And States may deprive federal officials of a federal forum in which to assert federal immunity defenses. See International Primate Protection League, supra, at 86–87; Willingham, supra, at 407 (“[O]ne of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court”); Jefferson County v. Acker, 527 U. S. 423, 447 (1999) (Scalia, J., concurring in part and dissenting in part) (noting that “the main point” of the federal officer removal statute “is to give officers a federal forum in which to litigate the merits of immunity defenses”). Where a private person acts as an assistant to a federal official in helping that official to enforce federal law, some of these same considerations may apply. Regardless, in Davis v. South Carolina the Court wrote that the removal statute applies to private persons “who lawfully assist” the federal officer “in the performance of his official duty.” 107 U. S., at 600. And in City of Greenwood v. Peacock, 384 U. S. 808, 824 (1966), in interpreting a related removal provision, the Court repeated that the statute authorized removal by private parties “only” if they were “authorized to act with or for [federal officers or agents] in affirmatively executing duties under … federal law.” All the Court’s relevant post-1948 federal officer removal cases that we have found reflect or are consistent with this Court’s pre-1948 views. See Mesa v. California, 489 U. S. 121 (1989); Manypenny, supra; Willingham, supra; Peacock, supra. III With this history and precedent in mind, we return to the statute’s language. The relevant relationship is that of a private person “acting under” a federal “officer” or “agency.” 28 U. S. C. §1442(a)(1) (emphasis added). In this context, the word “under” must refer to what has been described as a relationship that involves “acting in a certain capacity, considered in relation to one holding a superior position or office.” 18 Oxford English Dictionary 948 (2d ed. 1989). That relationship typically involves “subjection, guidance, or control.” Webster’s New International Dictionary 2765 (2d ed. 1953). See also Funk & Wagnalls New Standard Dictionary of the English Language 2604 (1942) (defining “under” as meaning “[s]ubordinate or subservient to,” “[s]ubject to guidance, tutorship, or direction of”); 18 Oxford English Dictionary, supra, at 949 (“[s]ubject to the instruction, direction, or guidance of”). In addition, precedent and statutory purpose make clear that the private person’s “acting under” must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior. See, e.g., Davis v. South Carolina, supra, at 600; see also supra, at 5–7. In our view, the help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law. We recognize that sometimes an English speaker might say that one who complies with the law “helps” or “assists” governmental law enforcement. Taxpayers who fill out complex federal tax forms, airline passengers who obey federal regulations prohibiting smoking, for that matter well-behaved federal prisoners, all “help” or “assist” federal law enforcement authorities in some sense of those words. But that is not the sense of “help” or “assist” that can bring a private action within the scope of this statute. That is in part a matter of language. One would usually describe the behavior of the taxpayers, airline passengers, and prisoners we have described as compliance with the law (or acquiescence to an order), not as “acting under” a federal official who is giving an order or enforcing the law. It is also in part a matter of the history and the precedent we have discussed. See supra, at 3–7. Finally, it is a matter of statutory purpose. When a company subject to a regulatory order (even a highly complex order) complies with the order, it does not ordinarily create a significant risk of state-court “prejudice.” Cf. Soper, 270 U. S., at 32; Manypenny, supra, at 241–242. Nor is a state-court lawsuit brought against such a company likely to disable federal officials from taking necessary action designed to enforce federal law. Cf. Tennessee v. Davis, 100 U. S., at 262–263. Nor is such a lawsuit likely to deny a federal forum to an individual entitled to assert a federal claim of immunity. See, e.g., Willingham, 395 U. S., at 407. The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone. A private firm’s compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase “acting under” a federal “official.” And that is so even if the regulation is highly detailed and even if the private firm’s activities are highly supervised and monitored. A contrary determination would expand the scope of the statute considerably, potentially bringing within its scope state-court actions filed against private firms in many highly regulated industries. See, e.g., Federal Insecticide, Fungicide, and Rodenticide Act, 7 U. S. C. §136a (2000 ed. and Supp. IV) (mandating disclosure of testing results in the context of pesticide registration). Neither language, nor history, nor purpose lead us to believe that Congress intended any such expansion. IV Philip Morris advances two important arguments to the contrary. First, it points out that lower courts have held that Government contractors fall within the terms of the federal officer removal statute, at least when the relationship between the contractor and the Government is an unusually close one involving detailed regulation, monitoring, or supervision. See, e.g., Winters, 149 F. 3d 387. And it asks why, if close supervision is sufficient to turn a private contractor into a private firm “acting under” a Government “agency” or “officer,” does it not do the same when a company is subjected to intense regulation. The answer to this question lies in the fact that the private contractor in such cases is helping the Government to produce an item that it needs. The assistance that private contractors provide federal officers goes beyond simple compliance with the law and helps officers fulfill other basic governmental tasks. In the context of Winters, for example, Dow Chemical fulfilled the terms of a contractual agreement by providing the Government with a product that it used to help conduct a war. Moreover, at least arguably, Dow performed a job that, in the absence of a contract with a private firm, the Government itself would have had to perform. These circumstances distinguish Winters from this case. For present purposes that distinction is sufficient. And we need not further examine here (a case where private contracting is not at issue) whether and when particular circumstances may enable private contractors to invoke the statute. Second, Philip Morris argues that its activities at issue here did not consist simply of compliance with regulatory laws, rules, and orders. It contends that the FTC, after initially testing cigarettes for tar and nicotine, “delegated authority” for that task to an industry-financed testing laboratory in 1987. E.g., Brief for Respondents 31 (emphasis added). And Philip Morris asserts that (along with other cigarette companies) it was acting pursuant to that delegation. It adds that ever since this initial “delegation” the FTC has “extensive[ly] … supervis[ed]” and “closely monitored” the manner in which the laboratory tests cigarettes. Id., at 37, 30, 39. Philip Morris concludes that, given all these circumstances, just as Dow was “acting under” officers of the Department of Defense when it manufactured Agent Orange, see Winters, supra, at 399, so Philip Morris is “acting under” officers of the FTC when it conducts cigarette testing. See Brief for Respondents 38. For argument’s sake we shall overlook the fact that the petitioners appear to challenge the way in which Philip Morris “designed” its cigarettes, not the way in which it (or the industry laboratory) conducted cigarette testing. We also shall assume the following testing-related facts that Philip Morris sets forth in its brief: (1) In the 1950’s, the FTC ordered tobacco companies to stop advertising the amount of tar and nicotine contained in their cigarettes. See id., at 3. (2) In 1966, the FTC altered course. It permitted cigarette companies to advertise “tar and nicotine yields” provided that the company had substantiated its statement through use of the Cambridge Filter Method, a testing method developed by Dr. Clyde Ogg, a Department of Agriculture employee. Id., at 4–5. (3) The Cambridge Filter Method uses “a smoking machine that takes a 35 milliliter puff of two seconds’ duration on a cigarette every 60 seconds until the cigarette is smoked to a specified butt length.” FTC v. Brown & Williamson Tobacco Corp., 778 F. 2d 35, 37 (CADC 1985). It then measures the amount of tar and nicotine that is delivered. That data, in turn, determine whether a cigarette may be labeled as “light.” This method, Dr. Ogg has testified, “will not tell a smoker how much tar and nicotine he will get from any given cigarette,” but it “will indicate” whether a smoker “will get more from one than from another cigarette if there is a significant difference between the two and if he smokes the two in the same manner.” Brief for Respondents 5–6 (internal quotation marks omitted). (4) In 1967, the FTC began to use its own laboratory to perform these tests. See id., at 6. And the Cambridge Filter Method began to be referred to as “the ‘FTC Method.’ ” Id., at 4. (5) The FTC published the testing results periodically and sent the results annually to Congress. See id., at 7. (6) Due to cost considerations, the FTC stopped testing cigarettes for tar and nicotine in 1987. Simultaneously, the tobacco industry assumed responsibility for cigarette testing, running the tests according to FTC specifications and permitting the FTC to monitor the process closely. See ibid. (7) The FTC continues to publish the testing results and to send them to Congress. See ibid. (8) The tobacco industry has followed the FTC’s requirement that cigarette manufacturers disclose (and make claims about) tar and nicotine content based exclusively on the results of this testing. See id., at 8–9. Assuming this timeline, Philip Morris’ argument nonetheless contains a fatal flaw—a flaw of omission. Although Philip Morris uses the word “delegation” or variations many times throughout its brief, we have found no evidence of any delegation of legal authority from the FTC to the industry association to undertake testing on the Government agency’s behalf. Nor is there evidence of any contract, any payment, any employer/employee relationship, or any principal/agent arrangement. We have examined all of the documents to which Philip Morris and certain supporting amici refer. Some of those documents refer to cigarette testing specifications, others refer to the FTC’s inspection and supervision of the industry laboratory’s testing, and still others refer to the FTC’s prohibition of statements in cigarette advertising. But none of these documents establish the type of formal delegation that might authorize Philip Morris to remove the case. Several former FTC officials, for example, filed an amicus brief in which they state that “[i]n 198[7] the FTC delegated testing responsibility to the private Tobacco Industry Testing Lab (the ‘TITL’).” Brief for Former Commissioners and Senior Staff of the FTC 11. But in support of this proposition the brief cites a single source, a letter from the cigarette manufacturers’ lawyer to an FTC official. That letter states: “[M]ajor United States cigarette manufacturers, who are responsible for the TITL’s operations and on whose behalf we are writing, do not believe that Commission oversight is needed … . Nevertheless, as an accommodation and in the spirit of cooperation, the manufacturers are prepared to permit Commission employees to monitor the TITL testing program … .” Letter from John P. Rupp to Judith P. Wilkenfeld (June 30, 1987), online at http://tobaccodocuments. org/nysa_ti_s1/TI57900738.html (as visited June 7, 2007, and available in Clerk of Court’s case file). Nothing in this letter refers to a delegation of authority. And neither Congress nor federal agencies normally delegate legal authority to private entities without saying that they are doing so. Without evidence of some such special relationship, Philip Morris’ analogy to Government contracting breaks down. We are left with the FTC’s detailed rules about advertising, specifications for testing, requirements about reporting results, and the like. This sounds to us like regulation, not delegation. If there is a difference between this kind of regulation and, say, that of Food and Drug Administration regulation of prescription drug marketing and advertising (which also involve testing requirements), see Serono Labs., Inc. v. Shalala, 158 F. 3d 1313, 1316 (CADC 1998), that difference is one of degree, not kind. As we have pointed out, however, differences in the degree of regulatory detail or supervision cannot by themselves transform Philip Morris’ regulatory compliance into the kind of assistance that might bring the FTC within the scope of the statutory phrase “acting under” a federal “officer.” Supra, at 8. And, though we find considerable regulatory detail and supervision, we can find nothing that warrants treating the FTC/Philip Morris relationship as distinct from the usual regulator/regulated relationship. This relationship, as we have explained, cannot be construed as bringing Philip Morris within the terms of the statute. For these reasons, the judgment of the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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550.US.1
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National banks’ business activities are controlled by the National Bank Act (NBA), 12 U. S. C. §1 et seq., and regulations promulgated thereunder by the Office of the Comptroller of the Currency (OCC), see §§24, 93a, 371(a). OCC is charged with supervision of the NBA and, thus, oversees the banks’ operations and interactions with customers. See NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 254, 256. The NBA grants OCC, as part of its supervisory authority, visitorial powers to audit the banks’ books and records, largely to the exclusion of other state or federal entities. See §484(a); 12 CFR §7.4000. The NBA specifically authorizes federally chartered banks to engage in real estate lending, 12 U. S. C. §371, and “[t]o exercise … such incidental powers as shall be necessary to carry on the business of banking,” §24 Seventh. Among incidental powers, national banks may conduct certain activities through “operating subsidiaries,” discrete entities authorized to engage solely in activities the bank itself could undertake, and subject to the same terms and conditions as the bank. See §24a(g)(3)(A); 12 CFR §5.34(e). Respondent Wachovia Bank is an OCC-chartered national banking association that conducts its real estate lending business through respondent Wachovia Mortgage Corporation, a wholly owned, North Carolina-chartered entity licensed as an operating subsidiary by OCC, and doing business in Michigan and elsewhere. Michigan law exempts banks, both national and state, from state mortgage lending regulation, but requires their subsidiaries to register with the State’s Office of Insurance and Financial Services (OIFS) and submit to state supervision. Although Wachovia Mortgage initially complied with Michigan’s requirements, it surrendered its Michigan registration once it became a wholly owned operating subsidiary of Wachovia Bank. Subsequently, petitioner Watters, the OIFS Commissioner, advised Wachovia Mortgage it would no longer be authorized to engage in mortgage lending in Michigan. Respondents sued for declaratory and injunctive relief, contending that the NBA and OCC’s regulations preempt application of the relevant Michigan mortgage lending laws to a national bank’s operating subsidiary. Watters responded that, because Wachovia Mortgage was not itself a national bank, the challenged Michigan laws were applicable and were not preempted. She also argued that the Tenth Amendment to the U. S. Constitution prohibits OCC’s exclusive regulation and supervision of national banks’ lending activities conducted through operating subsidiaries. Rejecting those arguments, the Federal District Court granted the Wachovia plaintiffs summary judgment in relevant part, and the Sixth Circuit affirmed. Held: 1. Wachovia’s mortgage business, whether conducted by the bank itself or through the bank’s operating subsidiary, is subject to OCC’s superintendence, and not to the licensing, reporting, and visitorial regimes of the several States in which the subsidiary operates. Pp. 5–17. (a) The NBA vests in nationally chartered banks enumerated powers and all “necessary” incidental powers. 12 U. S. C. §24 Seventh. To prevent inconsistent or intrusive state regulation, the NBA provides that “[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law … .” §484(a). Federally chartered banks are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or purposes of the NBA. But when state prescriptions significantly impair the exercise of authority, enumerated or incidental under the NBA, the State’s regulations must give way. E.g., Barnett Bank of Marion Cty., N. A. v. Nelson, 517 U. S. 25, 32–34. The NBA expressly authorizes national banks to engage in mortgage lending, subject to OCC regulation, §371(a). State law may not significantly burden a bank’s exercise of that power, see, e.g., Barnett Bank, 517 U. S., at 33–34. In particular, real estate lending, when conducted by a national bank, is immune from state visitorial control: The NBA specifically vests exclusive authority to examine and inspect in OCC. 12 U. S. C. §484(a). The Michigan provisions at issue exempt national banks themselves from coverage. This is not simply a matter of the Michigan Legislature’s grace. For, as the parties recognize, the NBA would spare a national bank from state controls of the kind here involved. Pp. 5–10. (b) Since 1966, OCC has recognized national banks’ “incidental” authority under §24 Seventh to do business through operating subsidiaries. See 12 CFR §5.34(e)(1). That authority is uncontested by Michigan’s Commissioner. OCC licenses and oversees national bank operating subsidiaries just as it does national banks. See, e.g., §5.34(e)(3); 12 U. S. C. §24a(g)(3)(A). Just as duplicative state examination, supervision, and regulation would significantly burden national banks’ mortgage lending, so too those state controls would interfere with that same activity when engaged in by a national bank’s operating subsidiary. This Court has never held that the NBA’s preemptive reach extends only to a national bank itself; instead, the Court has focused on the exercise of a national bank’s powers, not on its corporate structure, in analyzing whether state law hampers the federally permitted activities of a national bank. See, e.g., Barnett Bank, 517 U. S., at 32. And the Court has treated operating subsidiaries as equivalent to national banks with respect to powers exercised under federal law (except where federal law provides otherwise). See, e.g., NationsBank, 513 U. S., at 256–251. Security against significant interference by state regulators is a characteristic condition of “the business of banking” conducted by national banks, and mortgage lending is one aspect of that business. See, e.g., 12 U. S. C. §484(a). That security should adhere whether the business is conducted by the bank itself or by an OCC-licensed operating subsidiary whose authority to carry on the business coincides completely with the bank’s. Watters contends that if Congress meant to deny States visitorial powers over operating subsidiaries, it would have written §484(a)’s ban on state inspection to apply not only to national banks but also to their affiliates. She points out that §481, which authorizes OCC to examine “affiliates” of national banks, does not speak to state visitorial powers. This argument fails for two reasons. First, any intention regarding operating subsidiaries cannot be ascribed to the 1864 Congress that enacted §§481 and 484, or the 1933 Congress that added the affiliate examination provisions to §481 and the “affiliate” definition to §221a, because operating subsidiaries were not authorized until 1966. Second, Watters ignores the distinctions Congress recognized among “affiliates.” Unlike affiliates that may engage in functions not authorized by the NBA, an operating subsidiary is tightly tied to its parent by the specification that it may engage only in “the business of banking,” §24a(g)(3)(A). Notably, when Congress amended the NBA to provide that operating subsidiaries may “engag[e] solely in activities that national banks are permitted to engage in directly,” ibid., it did so in an Act providing that other affiliates, authorized to engage in nonbanking financial activities, e.g., securities and insurance, are subject to state regulation in connection with those activities. See, e.g., §§1843(k), 1844(c)(4). Pp. 10–15. (c) Recognizing the necessary consequence of national banks’ authority to engage in mortgage lending through an operating subsidiary “subject to the same terms and conditions that govern the conduct of such activities by national banks,” §24a(g)(3)(A), OCC promulgated 12 CFR §7.4006: “Unless otherwise provided by Federal law or OCC regulation, State laws apply to national bank operating subsidiaries to the same extent that those laws apply to the parent national bank.” Watters disputes OCC’s authority to promulgate this regulation and contends that, because preemption is a legal question for determination by courts, §7.4006 should attract no deference. This argument is beside the point, for §7.4006 merely clarifies and confirms what the NBA already conveys: A national bank may engage in real estate lending through an operating subsidiary, subject to the same terms and conditions that govern the bank itself; that power cannot be significantly impaired or impeded by state law. Though state law governs incorporation-related issues, state regulators cannot interfere with the “business of banking” by subjecting national banks or their OCC-licensed operating subsidiaries to multiple audits and surveillance under rival oversight regimes. Pp. 15–17. 2. Watters’ alternative argument, that 12 CFR §7.4006 violates the Tenth Amendment, is unavailing. The Amendment expressly disclaims any reservation to the States of a power delegated to Congress in the Constitution, New York v. United States, 505 U. S. 144, 156. Because regulation of national bank operations is Congress’ prerogative under the Commerce and Necessary and Proper Clauses, see Citizens Bank v. Alafabco, Inc., 539 U. S. 52, 58, the Amendment is not implicated here. P. 17. 431 F. 3d 556, affirmed. Ginsburg, J., delivered the opinion of the Court, in which Kennedy, Souter, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia, J., joined. Thomas, J., took no part in the consideration or decision of the case.
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Business activities of national banks are controlled by the National Bank Act (NBA or Act), 12 U. S. C. §1 et seq., and regulations promulgated thereunder by the Office of the Comptroller of the Currency (OCC). See §§24, 93a, 371(a). As the agency charged by Congress with supervision of the NBA, OCC oversees the operations of national banks and their interactions with customers. See NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 254, 256 (1995). The agency exercises visitorial powers, including the authority to audit the bank’s books and records, largely to the exclusion of other governmental entities, state or federal. See §484(a); 12 CFR §7.4000 (2006). The NBA specifically authorizes federally chartered banks to engage in real estate lending. 12 U. S. C. §371. It also provides that banks shall have power “[t]o exercise … all such incidental powers as shall be necessary to carry on the business of banking.” §24 Seventh. Among incidental powers, national banks may conduct certain activities through “operating subsidiaries,” discrete entities authorized to engage solely in activities the bank itself could undertake, and subject to the same terms and conditions as those applicable to the bank. See §24a(g)(3)(A); 12 CFR §5.34(e) (2006). Respondent Wachovia Bank, a national bank, conducts its real estate lending business through Wachovia Mortgage Corporation, a wholly owned, state-chartered entity, licensed as an operating subsidiary by OCC. It is uncontested in this suit that Wachovia’s real estate business, if conducted by the national bank itself, would be subject to OCC’s superintendence, to the exclusion of state registration requirements and visitorial authority. The question in dispute is whether the bank’s mortgage lending activities remain outside the governance of state licensing and auditing agencies when those activities are conducted, not by a division or department of the bank, but by the bank’s operating subsidiary. In accord with the Courts of Appeals that have addressed the issue,[Footnote 1] we hold that Wachovia’s mortgage business, whether conducted by the bank itself or through the bank’s operating subsidiary, is subject to OCC’s superintendence, and not to the licensing, reporting, and visitorial regimes of the several States in which the subsidiary operates. I Wachovia Bank is a national banking association chartered by OCC. Respondent Wachovia Mortgage is a North Carolina corporation that engages in the business of real estate lending in the State of Michigan and elsewhere. Michigan’s statutory regime exempts banks, both national and state, from state mortgage lending regulation, but requires mortgage brokers, lenders, and servicers that are subsidiaries of national banks to register with the State’s Office of Insurance and Financial Services (OIFS) and submit to state supervision. Mich. Comp. Laws Ann. §§445.1656(1), 445.1679(1)(a) (West 2002), 493.52(1), and 493.53a(d) (West 1998).[Footnote 2] From 1997 until 2003, Wachovia Mortgage was registered with OIFS to engage in mortgage lending. As a registrant, Wachovia Mortgage was required, inter alia, to pay an annual operating fee, file an annual report, and open its books and records to inspection by OIFS examiners. §§445.1657, 445.1658, 445.1671 (West 2002), 493.54, 493.56a(2), (13) (West 1998). Petitioner Linda Watters, the commissioner of OIFS, administers the State’s lending laws. She exercises “general supervision and control” over registered lenders, and has authority to conduct examinations and investigations and to enforce requirements against registrants. See §§445.1661, 445.1665, 445.1666 (West 2002), 493.58, 493.56b, 493.59, 493.62a (West 1998 and Supp. 2005). She also has authority to investigate consumer complaints and take enforcement action if she finds that a complaint is not “being adequately pursued by the appropriate federal regulatory authority.” §445.1663(2) (West 2002). On January 1, 2003, Wachovia Mortgage became a wholly owned operating subsidiary of Wachovia Bank. Three months later, Wachovia Mortgage advised the State of Michigan that it was surrendering its mortgage lending registration. Because it had become an operating subsidiary of a national bank, Wachovia Mortgage maintained, Michigan’s registration and inspection requirements were preempted. Watters responded with a letter advising Wachovia Mortgage that it would no longer be authorized to conduct mortgage lending activities in Michigan. Wachovia Mortgage and Wachovia Bank filed suit against Watters, in her official capacity as commissioner, in the United States District Court for the Western District of Michigan. They sought declaratory and injunctive relief prohibiting Watters from enforcing Michigan’s registration prescriptions against Wachovia Mortgage, and from interfering with OCC’s exclusive visitorial authority. The NBA and regulations promulgated thereunder, they urged, vest supervisory authority in OCC and preempt the application of the state-law controls at issue. Specifically, Wachovia Mortgage and Wachovia Bank challenged as preempted certain provisions of two Michigan statutes—the Mortgage Brokers, Lenders, and Services Licensing Act and the Secondary Mortgage Loan Act. The challenged provisions (1) require mortgage lenders—including national bank operating subsidiaries but not national banks themselves—to register and pay fees to the State before they may conduct banking activities in Michigan, and authorize the commissioner to deny or revoke registrations, §§445.1652(1) (West Supp. 2006), 445.1656(1)(d) (West 2002), 445.1657(1), 445.1658, 445.1679(1)(a), 493.52(1) (West 1998), 493.53a(d), 493.54, 493.55(4), 493.56a(2), and 493.61; (2) require submission of annual financial statements to the commissioner and retention of certain documents in a particular format, §§445.1657(2) (West 2002), 445.1671, 493.56a(2) (West 1998); (3) grant the commissioner inspection and enforcement authority over registrants, §§445.1661 (West 2002), 493.56b (West Supp. 2005); and (4) authorize the commissioner to take regulatory or enforcement actions against covered lenders, §§445.1665 (West 2002), 445.1666, 493.58–59, and 493.62a (West 1998). In response, Watters argued that, because Wachovia Mortgage was not itself a national bank, the challenged Michigan controls were applicable and were not preempted. She also contended that the Tenth Amendment to the Constitution of the United States prohibits OCC’s exclusive superintendence of national bank lending activities conducted through operating subsidiaries. The District Court granted summary judgment to the banks in relevant part. 334 F. Supp. 2d 957, 966 (WD Mich. 2004). Invoking the two-step framework of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), the court deferred to the Comptroller’s determination that an operating subsidiary is subject to state regulation only to the extent that the parent bank would be if it performed the same functions. 334 F. Supp. 2d, at 963–965 (citing, e.g., 12 CFR §§5.34(e)(3), 7.4006 (2004)). The court also rejected Watters’ Tenth Amendment argument. 334 F. Supp. 2d, at 965–966. The Sixth Circuit affirmed. 431 F. 3d 556 (2005). We granted certiorari. 547 U. S. ___ (2006). II A Nearly two hundred years ago, in McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court held federal law supreme over state law with respect to national banking. Though the bank at issue in McCulloch was short-lived, a federal banking system reemerged in the Civil War era. See Atherton v. FDIC, 519 U. S. 213, 221–222 (1997); B. Hammond, Banks and Politics in America: from the Revolution to the Civil War (1957). In 1864, Congress enacted the NBA, establishing the system of national banking still in place today. National Bank Act, ch. 106, 13 Stat. 99;[Footnote 3] Atherton, 519 U. S., at 222; Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U. S. 299, 310, 314–315 (1978). The Act vested in nationally chartered banks enumerated powers and “all such incidental powers as shall be necessary to carry on the business of banking.” 12 U. S. C. §24 Seventh. To prevent inconsistent or intrusive state regulation from impairing the national system, Congress provided: “No national bank shall be subject to any visitorial powers except as authorized by Federal law . . . .” §484(a). In the years since the NBA’s enactment, we have repeatedly made clear that federal control shields national banking from unduly burdensome and duplicative state regulation. See, e.g., Beneficial Nat. Bank v. Anderson, 539 U. S. 1, 10 (2003) (national banking system protected from “possible unfriendly State legislation” (quoting Tiffany v. National Bank of Mo., 18 Wall. 409, 412 (1874))). Federally chartered banks are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or the general purposes of the NBA. Davis v. Elmira Savings Bank, 161 U. S. 275, 290 (1896). See also Atherton, 519 U. S., at 223. For example, state usury laws govern the maximum rate of interest national banks can charge on loans, 12 U. S. C. §85, contracts made by national banks “are governed and construed by State laws,” National Bank v. Commonwealth, 9 Wall. 353, 362 (1870), and national banks’ “acquisition and transfer of property [are] based on State law,” ibid. However, “the States can exercise no control over [national banks], nor in any wise affect their operation, except in so far as Congress may see proper to permit. Any thing beyond this is an abuse, because it is the usurpation of power which a single State cannot give.” Farmers’ and Mechanics’ Nat. Bank v. Dearing, 91 U. S. 29, 34 (1875) (internal quotation marks omitted). We have “interpret[ed] grants of both enumerated and incidental ‘powers’ to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law.” Barnett Bank of Marion Cty., N. A. v. Nelson, 517 U. S. 25, 32 (1996). See also Franklin Nat. Bank of Franklin Square v. New York, 347 U. S. 373, 375–379 (1954). States are permitted to regulate the activities of national banks where doing so does not prevent or significantly interfere with the national bank’s or the national bank regulator’s exercise of its powers. But when state prescriptions significantly impair the exercise of authority, enumerated or incidental under the NBA, the State’s regulations must give way. Barnett Bank, 517 U. S., at 32–34 (federal law permitting national banks to sell insurance in small towns preempted state statute prohibiting banks from selling most types of insurance); Franklin Nat. Bank, 347 U. S., at 377–379 (local restrictions preempted because they burdened exercise of national banks’ incidental power to advertise). The NBA authorizes national banks to engage in mortgage lending, subject to OCC regulation. The Act provides: “Any national banking association may make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate, subject to 1828(o) of this title and such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order.” 12 U. S. C. §371(a).[Footnote 4] Beyond genuine dispute, state law may not significantly burden a national bank’s own exercise of its real estate lending power, just as it may not curtail or hinder a national bank’s efficient exercise of any other power, incidental or enumerated under the NBA. See Barnett Bank, 517 U. S., at 33–34; Franklin, 347 U. S., at 375–379. See also 12 CFR §34.4(a)(1) (2006) (identifying preempted state controls on mortgage lending, including licensing and registration). In particular, real estate lending, when conducted by a national bank, is immune from state visitorial control: The NBA specifically vests exclusive authority to examine and inspect in OCC. 12 U. S. C. §484(a) (“No national bank shall be subject to any visitorial powers except as authorized by Federal law.”).[Footnote 5] Harmoniously, the Michigan provisions at issue exempt national banks from coverage. Mich. Comp. Laws Ann. §445.1675(a) (West 2002). This is not simply a matter of the Michigan Legislature’s grace. Cf. post, at 13–14, and n. 17. For, as the parties recognize, the NBA would have preemptive force, i.e., it would spare a national bank from state controls of the kind here involved. See Brief for Petitioner 12; Brief for Respondents 14; Brief for United States as Amicus Curiae 9. State laws that conditioned national banks’ real estate lending on registration with the State, and subjected such lending to the State’s investigative and enforcement machinery would surely interfere with the banks’ federally authorized business: National banks would be subject to registration, inspection, and enforcement regimes imposed not just by Michigan, but by all States in which the banks operate.[Footnote 6] Diverse and duplicative superintendence of national banks’ engagement in the business of banking, we observed over a century ago, is precisely what the NBA was designed to prevent: “Th[e] legislation has in view the erection of a system extending throughout the country, and independent, so far as powers conferred are concerned, of state legislation which, if permitted to be applicable, might impose limitations and restrictions as various and as numerous as the States.” Easton v. Iowa, 188 U. S. 220, 229 (1903). Congress did not intend, we explained, “to leave the field open for the States to attempt to promote the welfare and stability of national banks by direct legislation… . [C]onfusion would necessarily result from control possessed and exercised by two independent authorities.” Id., at 231–232. Recognizing the burdens and undue duplication state controls could produce, Congress included in the NBA an express command: “No national bank shall be subject to any visitorial powers except as authorized by Federal law… .” 12 U. S. C. §484(a). See supra, at 6, 8; post, at 10 (acknowledging that national banks have been “exemp[t] from state visitorial authority … for more than 140 years”). “Visitation,” we have explained “is the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations.” Guthrie v. Harkness, 199 U. S. 148, 158 (1905) (internal quotation marks omitted). See also 12 CFR §7.4000(a)(2) (2006) (defining “visitorial” power as “(i) [e]xamination of a bank; (ii) [i]nspection of a bank’s books and records; (iii) [r]egulation and supervision of activities authorized or permitted pursuant to federal banking law; and (iv) [e]nforcing compliance with any applicable federal or state laws concerning those activities”). Michigan, therefore, cannot confer on its commissioner examination and enforcement authority over mortgage lending, or any other banking business done by national banks.[Footnote 7] B While conceding that Michigan’s licensing, registration, and inspection requirements cannot be applied to national banks, see, e.g., Brief for Petitioner 10, 12, Watters argues that the State’s regulatory regime survives preemption with respect to national banks’ operating subsidiaries. Because such subsidiaries are separately chartered under some State’s law, Watters characterizes them simply as “affiliates” of national banks, and contends that even though they are subject to OCC’s superintendence, they are also subject to multistate control. Id., at 17–22. We disagree. Since 1966, OCC has recognized the “incidental” authority of national banks under §24 Seventh to do business through operating subsidiaries. See 31 Fed. Reg. 11459–11460 (1966); 12 CFR §5.34(e)(1) (2006) (“A national bank may conduct in an operating subsidiary activities that are permissible for a national bank to engage in directly either as part of, or incidental to, the business of banking . . . .”). That authority is uncontested by Michigan’s commissioner. See Brief for Petitioner 21 (“[N]o one disputes that 12 U. S. C. §24 (Seventh) authorizes national banks to use nonbank operating subsidiaries … .”). OCC licenses and oversees national bank operating subsidiaries just as it does national banks. §5.34(e)(3) (“An operating subsidiary conducts activities authorized under this section pursuant to the same authorization, terms and conditions that apply to the conduct of such activities by its parent national bank.”);[Footnote 8] United States Office of the Comptroller of the Currency, Related Organizations: Comptroller’s Handbook 53 (Aug. 2004) (hereinafter Comptroller’s Handbook) (“Operating subsidiaries are subject to the same supervision and regulation as the parent bank, except where otherwise provided by law or OCC regulation.”). In 1999, Congress defined and regulated “financial” subsidiaries; simultaneously, Congress distinguished those national bank affiliates from subsidiaries—typed “operating subsidiaries” by OCC—which may engage only in activities national banks may engage in directly, “subject to the same terms and conditions that govern the conduct of such activities by national banks.” Gramm-Leach-Bliley Act (GLBA), §121(a)(2), 113 Stat. 1378 (codified at 12 U. S. C. §24a(g)(3)(A)).[Footnote 9] For supervisory purposes, OCC treats national banks and their operating subsidiaries as a single economic enterprise. Comptroller’s Handbook 64. OCC oversees both entities by reference to “business line,” applying the same controls whether banking “activities are conducted directly or through an operating subsidiary.” Ibid.[Footnote 10] As earlier noted, Watters does not contest the authority of national banks to do business through operating subsidiaries. Nor does she dispute OCC’s authority to supervise and regulate operating subsidiaries in the same manner as national banks. Still, Watters seeks to impose state regulation on operating subsidiaries over and above regulation undertaken by OCC. But just as duplicative state examination, supervision, and regulation would significantly burden mortgage lending when engaged in by national banks, see supra, at 6–10, so too would those state controls interfere with that same activity when engaged in by an operating subsidiary. We have never held that the preemptive reach of the NBA extends only to a national bank itself. Rather, in analyzing whether state law hampers the federally permitted activities of a national bank, we have focused on the exercise of a national bank’s powers, not on its corporate structure. See, e.g., Barnett Bank, 517 U. S., at 32. And we have treated operating subsidiaries as equivalent to national banks with respect to powers exercised under federal law (except where federal law provides otherwise). In NationsBank of N. C., N. A., 513 U. S., at 256–261, for example, we upheld OCC’s determination that national banks had “incidental” authority to act as agents in the sale of annuities. It was not material that the function qualifying as within “the business of banking,” §24 Seventh, was to be carried out not by the bank itself, but by an operating subsidiary, i.e., an entity “subject to the same terms and conditions that govern the conduct of [the activity] by national banks [themselves].” §24a(g)(3)(A); 12 CFR §5.34(e)(3) (2006). See also Clarke v. Securities Industry Assn., 479 U. S. 388 (1987) (national banks, acting through operating subsidiaries, have power to offer discount brokerage services).[Footnote 11] Security against significant interference by state regulators is a characteristic condition of the “business of banking” conducted by national banks, and mortgage lending is one aspect of that business. See, e.g., 12 U. S.C. §484(a); 12 CFR §34.4(a)(1) (2006). See also supra, at 6–10; post, at 6 (acknowledging that, in 1982, Congress broadly authorized national banks to engage in mortgage lending); post, at 16, and n. 20 (acknowledging that operating subsidiaries “are subject to the same federal oversight as their national bank parents”). That security should adhere whether the business is conducted by the bank itself or is assigned to an operating subsidiary licensed by OCC whose authority to carry on the business coincides completely with that of the bank. See Wells Fargo Bank, N. A. v. Boutris, 419 F. 3d 949, 960 (CA9 2005) (determination whether to conduct business through operating subsidiaries or through subdivisions is “essentially one of internal organization”). Watters contends that if Congress meant to deny States visitorial powers over operating subsidiaries, it would have written §484(a)’s ban on state inspection to apply not only to national banks but also to their affiliates. She points out that §481, which authorizes OCC to examine “affiliates” of national banks, does not speak to state visitorial powers. This argument fails for two reasons. First, one cannot ascribe any intention regarding operating subsidiaries to the 1864 Congress that enacted §§481 and 484, or the 1933 Congress that added the provisions on examining affiliates to §481 and the definition of “affiliate” to §221a. That is so because operating subsidiaries were not authorized until 1966. See supra, at 11. Over the past four decades, during which operating subsidiaries have emerged as important instrumentalities of national banks, Congress and OCC have indicated no doubt that such subsidiaries are “subject to the same terms and conditions” as national banks themselves. Second, Watters ignores the distinctions Congress recognized among “affiliates.” The NBA broadly defines the term “affiliate” to include “any corporation” controlled by a national bank, including a subsidiary. See 12 U. S. C. §221a(b). An operating subsidiary is therefore one type of “affiliate.” But unlike affiliates that may engage in functions not authorized by the NBA, e.g., financial subsidiaries, an operating subsidiary is tightly tied to its parent by the specification that it may engage only in “the business of banking” as authorized by the Act. §24a(g)(3)(A); 12 CFR §5.34(e)(1) (2006). See also supra, at 11–12, and n. 10. Notably, when Congress amended the NBA confirming that operating subsidiaries may “engag[e] solely in activities that national banks are permitted to engage in directly,” 12 U. S. C. §24a(g)(3)(A), it did so in an Act, the GLBA, providing that other affiliates, authorized to engage in nonbanking financial activities, e.g., securities and insurance, are subject to state regulation in connection with those activities. See, e.g., §§1843(k), 1844(c)(4). See also 15 U. S. C. §6701(b) (any person who sells insurance must obtain a state license to do so).[Footnote 12] C Recognizing the necessary consequence of national banks’ authority to engage in mortgage lending through an operating subsidiary “subject to the same terms and conditions that govern the conduct of such activities by national banks,” 12 U. S. C. §24a(g)(3)(A), see also §24 Seventh, OCC promulgated 12 CFR §7.4006 (2006): “Unless otherwise provided by Federal law or OCC regulation, State laws apply to national bank operating subsidiaries to the same extent that those laws apply to the parent national bank.” See Investment Securities; Bank Activities & Operations; Leasing, 66 Fed. Reg. 34784, 34788 (2001). Watters disputes the authority of OCC to promulgate this regulation and contends that, because preemption is a legal question for determination by courts, §7.4006 should attract no deference. See also post, at 17–23. This argument is beside the point, for under our interpretation of the statute, the level of deference owed to the regulation is an academic question. Section 7.4006 merely clarifies and confirms what the NBA already conveys: A national bank has the power to engage in real estate lending through an operating subsidiary, subject to the same terms and conditions that govern the national bank itself; that power cannot be significantly impaired or impeded by state law. See, e.g., Barnett Bank, 517 U. S., at 33–34; 12 U. S. C. §§24 Seventh, 24a(g)(3)(A), 371.[Footnote 13] The NBA is thus properly read by OCC to protect from state hindrance a national bank’s engagement in the “business of banking” whether conducted by the bank itself or by an operating subsidiary, empowered to do only what the bank itself could do. See supra, at 11–12. The authority to engage in the business of mortgage lending comes from the NBA, §371, as does the authority to conduct business through an operating subsidiary. See §§24 Seventh, 24a(g)(3)(A). That Act vests visitorial oversight in OCC, not state regulators. §484(a). State law (in this case, North Carolina law), all agree, governs incorporation-related issues, such as the formation, dissolution, and internal governance of operating subsidiaries.[Footnote 14] And the laws of the States in which national banks or their affiliates are located govern matters the NBA does not address. See supra, at 6. But state regulators cannot interfere with the “business of banking” by subjecting national banks or their OCC-licensed operating subsidiaries to multiple audits and surveillance under rival oversight regimes. III Watters’ alternative argument, that 12 CFR §7.4006 violates the Tenth Amendment to the Constitution, is unavailing. As we have previously explained, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” New York v. United States, 505 U. S. 144, 156 (1992). Regulation of national bank operations is a prerogative of Congress under the Commerce and Necessary and Proper Clauses. See Citizens Bank v. Alafabco, Inc., 539 U. S. 52, 58 (2003) (per curiam). The Tenth Amendment, therefore, is not implicated here. * * * For the reasons stated, the judgment of the Sixth Circuit is Affirmed. Justice Thomas took no part in the consideration or decision of this case. Footnote 1 National City Bank of Indiana v. Turnbaugh, 463 F. 3d 325 (CA4 2006); Wachovia Bank, N. A. v. Burke, 414 F. 3d 305 (CA2 2005); 431 F. 3d 556 (CA6 2005) (case below); Wells Fargo Bank N. A. v. Boutris, 419 F. 3d 949 (CA9 2005). Footnote 2 Michigan’s law exempts subsidiaries of national banks that maintain a main office or branch office in Michigan. Mich. Comp. Laws Ann. §§445.1652(1)(b) (West Supp. 2006), 445.1675(m) (West 2002), 493.53a(d) (West 1998). Wachovia Bank has no such office in Michigan. Footnote 3 The Act of June 3, 1864, ch. 106, 13 Stat. 99, was originally entitled “An Act to provide a National Currency . . .”; its title was altered by Congress in 1874 to “the National Bank Act.” Ch. 343, 18 Stat. 123. Footnote 4 Section1828(o) requires federal banking agencies to adopt uniform regulations prescribing standards for real estate lending by depository institutions and sets forth criteria governing such standards. See, e.g., §1828(o)(2)(A) (“In prescribing standards … the agencies shall consider—(i) the risk posed to the deposit insurance funds by such extensions of credit; (ii) the need for safe and sound operation of insured depository institutions; and (iii) the availability of credit.”). Footnote 5 See also 2 R. Taylor, Banking Law §37.02, p. 37–5 (2006) (“[OCC] has exclusive authority to charter and examine [national] banks.” (footnote omitted)). Footnote 6 See 69 Fed. Reg. 1908 (2004) (“The application of multiple, often unpredictable, different state or local restrictions and requirements prevents [national banks] from operating in the manner authorized under Federal law, is costly and burdensome, interferes with their ability to plan their business and manage their risks, and subjects them to uncertain liabilities and potential exposure.”). Footnote 7 Ours is indeed a “dual banking system.” See post, at 1–5, 23. But it is a system that has never permitted States to license, inspect, and supervise national banks as they do state banks. The dissent repeatedly refers to the policy of “competitive equality” featured in First Nat. Bank in Plant City v. Dickinson, 396 U. S. 122, 131 (1969). See post, at 4, 14, 19, 23. Those words, however, should not be ripped from their context. Plant City involved the McFadden Act (Branch Banks), 44 Stat. 1228, 12 U. S. C. §36, in which Congress expressly authorized national banks to establish branches “only when, where, and how state law would authorize a state bank to establish and operate such [branches].” 396 U. S., at 130. See also id., at 131 (“[W]hile Congress has absolute authority over national banks, the [McFadden Act] has incorporated by reference the limitations which state law places on branch banking activities by state banks. Congress has deliberately settled upon a policy intended to foster competitive equality. … [The] Act reflects the congressional concern that neither system ha[s] advantages over the other in the use of branch banking.” (quoting First Nat. Bank of Logan v. Walker Bank & Trust Co., 385 U. S. 252, 261 (1966))). “[W]here Congress has not expressly conditioned the grant of ‘power’ upon a grant of state permission, the Court has ordinarily found that no such condition applies.” Barnett Bank of Marion Cty., N. A. v. Nelson, 517 U. S. 25, 34 (1996). The NBA provisions before us, unlike the McFadden Act, do not condition the exercise of power by national banks on state allowance of similar exercises by state banks. See supra, at 7–8. Footnote 8 The regulation further provides: “If, upon examination, the OCC determines that the operating subsidiary is operating in violation of law, regulation, or written condition, or in an unsafe or unsound manner or otherwise threatens the safety or soundness of the bank, the OCC will direct the bank or operating subsidiary to take appropriate remedial action, which may include requiring the bank to divest or liquidate the operating subsidiary, or discontinue specified activities.” 12 CFR §5.34(e)(3) (2006). Footnote 9 OCC subsequently revised its regulations to track the statute. See §5.34(e)(1), (3); Financial Subsidiaries and Operating Subsidiaries, 65 Fed. Reg. 12905, 12911 (2000). Cf. post, at 10 (dissent’s grudging acknowledgment that Congress “may have acquiesced” in OCC’s position that national banks may engage in “the business of banking” through operating subsidiaries empowered to do only what the bank itself can do). Footnote 10 For example, “for purposes of applying statutory or regulatory limits, such as lending limits or dividend restrictions,” e.g., 12 U. S. C. §§56, 60, 84, 371d, “[t]he results of operations of operating subsidiaries are consolidated with those of its parent.” Comptroller’s Handbook 64. Likewise, for accounting and regulatory reporting purposes, an operating subsidiary is treated as part of the member bank; assets and liabilities of the two entities are combined. See 12 CFR §§5.34(e)(4)(i), 223.3(w) (2006). OCC treats financial subsidiaries differently. A national bank may not consolidate the assets and liabilities of a financial subsidiary with those of the bank. Comptroller’s Handbook 64. It cannot be fairly maintained “that the transfer in 2003 of [Wachovia Mortgage’s] ownership from the holding company to the Bank” resulted in no relevant changes to the company’s business. Compare post, at 14, with supra, at 11, n. 8. On becoming Wachovia’s operating subsidiary, Wachovia Mortgage became subject to the same terms and conditions as national banks, including the full supervisory authority of OCC. This change exposed the company to significantly more federal oversight than it experienced as a state nondepository institution. Footnote 11 Cf. Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U. S. 299, 308, and n. 24 (1978) (holding that national bank may charge home State’s interest rate, regardless of more restrictive usury laws in borrower’s State, but declining to consider operating subsidiaries). Footnote 12 The dissent protests that the GLBA does not itself preempt the Michigan provisions at issue. Cf. post, at 15–17. We express no opinion on that matter. Our point is more modest: The GLBA simply demonstrates Congress’ formal recognition that national banks have incidental power to do business through operating subsidiaries. See supra, at 11–12; cf. post, at 9–10. Footnote 13 Because we hold that the NBA itself—independent of OCC’s regulation—preempts the application of the pertinent Michigan laws to national bank operating subsidiaries, we need not consider the dissent’s lengthy discourse on the dangers of vesting preemptive authority in administrative agencies. See post, at 17–23; cf. post, at 23–24 (maintaining that “[w]hatever the Court says, this is a case about an administrative agency’s power to preempt state laws,” and accusing the Court of “endors[ing] administrative action whose sole purpose was to preempt state law rather than to implement a statutory command”). Footnote 14 Watters does not assert that Wachovia Mortgage is out of compliance with any North Carolina law governing its corporate status.
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549.US.312
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Respondent Ross-Simmons, a sawmill, filed suit under §2 of the Sherman Act, alleging that petitioner Weyerhaeuser drove it out of business by bidding up the price of sawlogs to a level that prevented Ross-Simmons from being profitable. The District Court, inter alia, rejected Weyerhaeuser’s proposed predatory-bidding jury instructions that incorporated elements of the test applied to predatory-pricing claims in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209. The jury returned a verdict against Weyerhaeuser. The Ninth Circuit affirmed, rejecting Weyerhaeuser’s argument that Brooke Group’s standard should apply to predatory-bidding claims. Held: The test this Court applied to predatory-pricing claims in Brooke Group also applies to predatory-bidding claims. Pp. 4–13. (a) Predatory pricing is a scheme in which the predator reduces the sale price of its product hoping to drive competitors out of business and, once competition has been vanquished, raises prices to a supracompetitive level. Brooke Group established two prerequisites to recovery on a predatory-pricing claim: First, a plaintiff must show that the prices complained of are below cost, 509 U. S., at 222, because allowing recovery for above-cost price cutting could chill conduct—price cutting—that directly benefits consumers. Second, a plaintiff must show that the alleged predator had “a dangerous probability of recouping its investment in below-cost pricing,” id., at 224, because without such a probability, it is highly unlikely that a firm would engage in predatory pricing. The costs of erroneous findings of predatory-pricing liability are quite high because “ ‘[t]he mechanism by which a firm engages in predatory pricing—lowering prices—is the same mechanism by which a firm stimulates competition,’ ” and therefore, mistaken liability findings would “ ‘ “chill the very conduct the antitrust laws are designed to protect.” ’ ” Id., at 26. Pp. 4–7. (b) Predatory bidding involves the exercise of market power on the market’s buy, or input, side. To engage in predatory bidding, a purchaser bids up the market price of an input so high that rival buyers cannot survive, thus acquiring monopsony power, which is market power on the buy side of the market. Once a predatory bidder causes competing buyers to exit the market, it will attempt to drive down input prices to reap supracompetitive profits that will at least offset the losses it suffered in bidding up input prices. Pp. 7–8. (c) Predatory-pricing and predatory-bidding claims are analytically similar. And the close theoretical connection between monopoly and monopsony suggests that similar legal standards should apply to both sorts of claims. Both involve the deliberate use of unilateral pricing measures for anticompetitive purposes and both require firms to incur certain short-term losses on the chance that they might later make supracompetitive profits. More importantly, predatory bidding mirrors predatory pricing in respects deemed significant in Brooke Group. Because rational businesses will rarely suffer short-term losses in hopes of reaping supracompetitive profits, Brooke Group’s conclusion that “ ‘predatory pricing schemes are rarely tried, and even more rarely successful,’ ” 509 U. S., at 226, applies with equal force to predatory-bidding schemes. And like the predatory conduct in Brooke Group, actions taken in a predatory-bidding scheme are often “ ‘ “the very essence of competition,” ’ ” ibid., because a failed predatory-bidding scheme can be a “boon to consumers,” see id., at 224. Predatory bidding also presents less of a direct threat of consumer harm than predatory pricing, which achieves ultimate success by charging higher prices to consumers, because a predatory bidder does not necessarily rely on raising prices in the output market to recoup its losses. Pp. 8–12. (d) Given these similarities, Brooke Group’s two-pronged test should apply to predatory-bidding claims. A predatory-bidding plaintiff must prove that the predator’s bidding on the buy side caused the cost of the relevant output to rise above the revenues generated in the sale of those outputs. Because the risk of chilling procompetitive behavior with too lax a liability standard is as serious here as it was in Brooke Group, only higher bidding that leads to below-cost pricing in the relevant output market will suffice as a basis for predatory-bidding liability. A predatory-bidding plaintiff also must prove that the defendant has a dangerous probability of recouping the losses incurred in bidding up input prices through the exercise of monopsony power. Making such a showing will require “a close analysis of both the scheme alleged by the plaintiff and the [relevant market’s] structure and conditions,” 509 U. S., at 226. Pp. 12–13. (e) Because Ross-Simmons has conceded that it has not satisfied the Brooke Group standard, its predatory-bidding theory of liability cannot support the jury’s verdict. P. 13. 411 F. 3d 1030, vacated and remanded. Thomas, J., delivered the opinion for a unanimous Court.
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Respondent Ross-Simmons, a sawmill, sued petitioner Weyerhaeuser, alleging that Weyerhaeuser drove it out of business by bidding up the price of sawlogs to a level that prevented Ross-Simmons from being profitable. A jury returned a verdict in favor of Ross-Simmons on its monopolization claim, and the Ninth Circuit affirmed. We granted certiorari to decide whether the test we applied to claims of predatory pricing in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209 (1993), also applies to claims of predatory bidding. We hold that it does. Accordingly, we vacate the judgment of the Court of Appeals. I This antitrust case concerns the acquisition of red alder sawlogs by the mills that process those logs in the Pacific Northwest. These hardwood-lumber mills usually acquire logs in one of three ways. Some logs are purchased on the open bidding market. Some come to the mill through standing short- and long-term agreements with timberland owners. And others are harvested from timberland owned by the sawmills themselves. The allegations relevant to our decision in this case relate to the bidding market. Ross-Simmons began operating a hardwood-lumber sawmill in Longview, Washington, in 1962. Weyerhaeuser entered the Northwestern hardwood-lumber market in 1980 by acquiring an existing lumber company. Weyerhaeuser gradually increased the scope of its hardwood-lumber operation, and it now owns six hardwood sawmills in the region. By 2001, Weyerhaeuser’s mills were acquiring approximately 65 percent of the alder logs available for sale in the region. App. 754a, 341a. From 1990 to 2000, Weyerhaeuser made more than $75 million in capital investments in its hardwood mills in the Pacific Northwest. Id., at 159a. During this period, production increased at every Northwestern hardwood mill that Weyerhaeuser owned. Id., at 160a. In addition to increasing production, Weyerhaeuser used “state-of-the-art technology,” id., at 500a, including sawing equipment, to increase the amount of lumber recovered from every log, id., at 500a, 549a. By contrast, Ross-Simmons appears to have engaged in little efficiency-enhancing investment. See id., at 438a–441a. Logs represent up to 75 percent of a sawmill’s total costs. See id., at 169a. And from 1998 to 2001, the price of alder sawlogs increased while prices for finished hardwood lumber fell. These divergent trends in input and output prices cut into the mills’ profit margins, and Ross-Simmons suffered heavy losses during this time. See id., at 155a (showing a negative net income from 1998 to 2000). Saddled with several million dollars in debt, Ross-Simmons shut down its mill completely in May 2001. Id., at 156a. Ross-Simmons blamed Weyerhaeuser for driving it out of business by bidding up input costs, and it filed an antitrust suit against Weyerhaeuser for monopolization and attempted monopolization under §2 of the Sherman Act. See 26 Stat. 209, as amended, 15 U. S. C. §2 (2000 ed., Supp. IV). Ross-Simmons alleged that, among other anticompetitive acts, Weyerhaeuser had used “its dominant position in the alder sawlog market to drive up the prices for alder sawlogs to levels that severely reduced or eliminated the profit margins of Weyerhaeuser’s alder sawmill competition.” App. 135a. Proceeding in part on this “predatory-bidding” theory, Ross-Simmons argued that Weyerhaeuser had overpaid for alder sawlogs to cause sawlog prices to rise to artificially high levels as part of a plan to drive Ross-Simmons out of business. As proof that this practice had occurred, Ross-Simmons pointed to Weyerhaeuser’s large share of the alder purchasing market, rising alder sawlog prices during the alleged predation period, and Weyerhaeuser’s declining profits during that same period. Prior to trial, Weyerhaeuser moved for summary judgment on Ross-Simmons’ predatory-bidding theory. Id., at 6a–24a. The District Court denied the motion. Id., at 58a–69a. At the close of the 9-day trial, Weyerhaeuser moved for judgment as a matter of law, or alternatively, for a new trial. The motions were based in part on Weyerhaeuser’s argument that Ross-Simmons had not satisfied the standard this Court set forth in Brooke Group, supra. App. 940a–942a. The District Court denied Weyerhaeuser’s motion. Id., at 720a, App. to Pet. for Cert. 46a. The District Court also rejected proposed predatory-bidding jury instructions that incorporated elements of the Brooke Group test. App. 725a–730a, 978a. Ultimately, the District Court instructed the jury that Ross-Simmons could prove that Weyerhaeuser’s bidding practices were anticompetitive acts if the jury concluded that Weyerhaeuser “purchased more logs than it needed, or paid a higher price for logs than necessary, in order to prevent [Ross-Simmons] from obtaining the logs they needed at a fair price.” Id., at 978a. Finding that Ross-Simmons had proved its claim for monopolization, the jury returned a $26 million verdict against Weyerhaeuser. Id., at 967a. The verdict was trebled to approximately $79 million. Weyerhaeuser appealed to the Court of Appeals for the Ninth Circuit. There, Weyerhaeuser argued that Brooke Group’s standard for claims of predatory pricing should also apply to claims of predatory bidding. The Ninth Circuit disagreed and affirmed the verdict against Weyerhaeuser. Confederated Tribes of Siletz Indians of Ore. v. Weyerhaeuser Co., 411 F. 3d 1030, 1035–1036 (2005). The Court of Appeals reasoned that “buy-side predatory bidding” and “sell-side predatory pricing,” though similar, are materially different in that predatory bidding does not necessarily benefit consumers or stimulate competition in the way that predatory pricing does. Id., at 1037. Concluding that “the concerns that led the Brooke Group Court to establish a high standard of liability in the predatory-pricing context do not carry over to this predatory bidding context with the same force,” the Court of Appeals declined to apply Brooke Group to Ross-Simmons’ claims of predatory bidding. 411 F. 3d, at 1038. The Court of Appeals went on to conclude that substantial evidence supported a finding of liability on the predatory-bidding theory. Id., at 1045. We granted certiorari to decide whether Brooke Group applies to claims of predatory bidding. 548 U. S. ___ (2006). We hold that it does, and we vacate the Court of Appeals’ judgment. II In Brooke Group, we considered what a plaintiff must show in order to succeed on a claim of predatory pricing under §2 of the Sherman Act.[Footnote 1] In a typical predatory-pricing scheme, the predator reduces the sale price of its product (its output) to below cost, hoping to drive competitors out of business. Then, with competition vanquished, the predator raises output prices to a supracompetitive level. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 584–585, n. 8 (1986) (describing predatory pricing). For the scheme to make economic sense, the losses suffered from pricing goods below cost must be recouped (with interest) during the supracompetitive-pricing stage of the scheme. Id., at 588–589; Cargill, Inc. v. Monfort of Colo., Inc., 479 U. S. 104, 121–122, n. 17 (1986); see also R. Bork, The Antitrust Paradox 145 (1978). Recognizing this economic reality, we established two prerequisites to recovery on claims of predatory pricing. “First, a plaintiff seeking to establish competitive injury resulting from a rival’s low prices must prove that the prices complained of are below an appropriate measure of its rival’s costs.” Brooke Group, 509 U. S., at 222. Second, a plaintiff must demonstrate that “the competitor had … a dangerous probabilit[y] of recouping its investment in below-cost prices.” Id., at 224. The first prong of the test—requiring that prices be below cost—is necessary because “[a]s a general rule, the exclusionary effect of prices above a relevant measure of cost either reflects the lower cost structure of the alleged predator, and so represents competition on the merits, or is beyond the practical ability of a judicial tribunal to control.” Id., at 223. We were particularly wary of allowing recovery for above-cost price cutting because allowing such claims could, perversely, “chil[l] legitimate price cutting,” which directly benefits consumers. See id., at 223–224; Atlantic Richfield Co. v. USA Petroleum Co., 495 U. S. 328, 340 (1990) (“Low prices benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition”). Thus, we specifically declined to allow plaintiffs to recover for above-cost price cutting, concluding that “discouraging a price cut and … depriving consumers of the benefits of lower prices … does not constitute sound antitrust policy.” Brooke Group, supra, at 224. The second prong of the Brooke Group test—requiring that there be a dangerous probability of recoupment of losses—is necessary because, without a dangerous probability of recoupment, it is highly unlikely that a firm would engage in predatory pricing. As the Court explained in Matsushita, a firm engaged in a predatory-pricing scheme makes an investment—the losses suffered plus the profits that would have been realized absent the scheme—at the initial, below-cost-selling phase. 475 U. S., at 588–589. For that investment to be rational, a firm must reasonably expect to recoup in the long run at least its original investment with supracompetitive profits. Ibid.; Brooke Group, 509 U. S., at 224. Without such a reasonable expectation, a rational firm would not willingly suffer definite, short-run losses. Recognizing the centrality of recoupment to a predatory-pricing scheme, we required predatory-pricing plaintiffs to “demonstrate that there is a likelihood that the predatory scheme alleged would cause a rise in prices above a competitive level that would be sufficient to compensate for the amounts expended on the predation, including the time value of the money invested in it.” Id., at 225. We described the two parts of the Brooke Group test as “essential components of real market injury” that were “not easy to establish.” Id., at 226. We also reiterated that the costs of erroneous findings of predatory-pricing liability were quite high because “ ‘[t]he mechanism by which a firm engages in predatory pricing—lowering prices—is the same mechanism by which a firm stimulates competition,’ ” and therefore, mistaken findings of liability would “ ‘ “chill the very conduct the antitrust laws are designed to protect.” ’ ” Ibid. (quoting Cargill, supra, at 122, n. 17). III Predatory bidding, which Ross-Simmons alleges in this case, involves the exercise of market power on the buy side or input side of a market. In a predatory-bidding scheme, a purchaser of inputs “bids up the market price of a critical input to such high levels that rival buyers cannot survive (or compete as vigorously) and, as a result, the predating buyer acquires (or maintains or increases its) monopsony power.” Kirkwood, Buyer Power and Exclusionary Conduct, 72 Antitrust L. J. 625, 652 (2005) (hereinafter Kirkwood). Monopsony power is market power on the buy side of the market. Blair & Harrison, Antitrust Policy and Monopsony, 76 Cornell L. Rev. 297 (1991). As such, a monopsony is to the buy side of the market what a monopoly is to the sell side and is sometimes colloquially called a “buyer’s monopoly.” See id., at 301, 320; Piraino, A Proposed Antitrust Approach to Buyers’ Competitive Conduct, 56 Hastings L. J. 1121, 1125 (2005). A predatory bidder ultimately aims to exercise the monopsony power gained from bidding up input prices. To that end, once the predatory bidder has caused competing buyers to exit the market for purchasing inputs, it will seek to “restrict its input purchases below the competitive level,” thus “reduc[ing] the unit price for the remaining input[s] it purchases.” Salop, Anticompetitive Overbuying by Power Buyers, 72 Antitrust L. J. 669, 672 (2005) (hereinafter Salop). The reduction in input prices will lead to “a significant cost saving that more than offsets the profit[s] that would have been earned on the output.” Ibid. If all goes as planned, the predatory bidder will reap monopsonistic profits that will offset any losses suffered in bidding up input prices.[Footnote 2] (In this case, the plaintiff was the defendant’s competitor in the input-purchasing market. Thus, this case does not present a situation of suppliers suing a monopsonist buyer under §2 of the Sherman Act, nor does it present a risk of significantly increased concentration in the market in which the monopsonist sells, i.e., the market for finished lumber.) IV A Predatory-pricing and predatory-bidding claims are analytically similar. See Hovenkamp, The Law of Exclusionary Pricing, 2 Competition Policy Int’l, No. 1, pp. 21, 35 (Spring 2006). This similarity results from the close theoretical connection between monopoly and monopsony. See Kirkwood 653 (describing monopsony as the “mirror image” of monopoly); Khan v. State Oil Co., 93 F. 3d 1358, 1361 (CA7 1996) (“[M]onopsony pricing … is analytically the same as monopoly or cartel pricing and [is] so treated by the law”), vacated and remanded on other grounds, 522 U. S. 3 (1997); Vogel v. American Soc. of Appraisers, 744 F. 2d 598, 601 (CA7 1984) (“[M]onopoly and monopsony are symmetrical distortions of competition from an economic standpoint”); see also Hearing on Monopsony Issues in Agriculture: Buying Power of Processors in Our Nation’s Agricultural Markets before the Senate Committee on the Judiciary, 108th Cong., 1st Sess., 3 (2004). The kinship between monopoly and monopsony suggests that similar legal standards should apply to claims of monopolization and to claims of monopsonization. Cf. Noll, “Buyer Power” and Economic Policy, 72 Antitrust L. J. 589, 591 (2005) (“[A]symmetric treatment of monopoly and monopsony has no basis in economic analysis”). Tracking the economic similarity between monopoly and monopsony, predatory-pricing plaintiffs and predatory-bidding plaintiffs make strikingly similar allegations. A predatory-pricing plaintiff alleges that a predator cut prices to drive the plaintiff out of business and, thereby, to reap monopoly profits from the output market. In parallel fashion, a predatory-bidding plaintiff alleges that a predator raised prices for a key input to drive the plaintiff out of business and, thereby, to reap monopsony profits in the input market. Both claims involve the deliberate use of unilateral pricing measures for anticompetitive purposes.[Footnote 3] And both claims logically require firms to incur short-term losses on the chance that they might reap supracompetitive profits in the future. B More importantly, predatory bidding mirrors predatory pricing in respects that we deemed significant to our analysis in Brooke Group. In Brooke Group, we noted that “ ‘predatory pricing schemes are rarely tried, and even more rarely successful.’ ” 509 U. S., at 226 (quoting Matsushita, 475 U. S., at 589). Predatory pricing requires a firm to suffer certain losses in the short term on the chance of reaping supracompetitive profits in the future. Id., at 588–589. A rational business will rarely make this sacrifice. Ibid. The same reasoning applies to predatory bidding. A predatory-bidding scheme requires a buyer of inputs to suffer losses today on the chance that it will reap supracompetitive profits in the future. For this reason, “[s]uccessful monopsony predation is probably as unlikely as successful monopoly predation.” R. Blair & J. Harrison, Monopsony 66 (1993). And like the predatory conduct alleged in Brooke Group, actions taken in a predatory-bidding scheme are often “ ‘ “the very essence of competition.” ’ ” 509 U. S., at 226 (quoting Cargill, 479 U. S., at 122, n. 17, in turn quoting Matsushita, supra, at 594). Just as sellers use output prices to compete for purchasers, buyers use bid prices to compete for scarce inputs. There are myriad legitimate reasons—ranging from benign to affirmatively procompetitive—why a buyer might bid up input prices. A firm might bid up inputs as a result of miscalculation of its input needs or as a response to increased consumer demand for its outputs. A more efficient firm might bid up input prices to acquire more inputs as a part of a procompetitive strategy to gain market share in the output market. A firm that has adopted an input-intensive production process might bid up inputs to acquire the inputs necessary for its process. Or a firm might bid up input prices to acquire excess inputs as a hedge against the risk of future rises in input costs or future input shortages. See Salop 682–683; Kirkwood 655. There is nothing illicit about these bidding decisions. Indeed, this sort of high bidding is essential to competition and innovation on the buy side of the market.[Footnote 4] Brooke Group also noted that a failed predatory-pricing scheme may benefit consumers. 509 U. S., at 224. The potential benefit results from the difficulty an aspiring predator faces in recouping losses suffered from below-cost pricing. Without successful recoupment, “predatory pricing produces lower aggregate prices in the market, and consumer welfare is enhanced.” Ibid. Failed predatory-bidding schemes can also, but will not necessarily, benefit consumers. See Salop 677–678. In the first stage of a predatory-bidding scheme, the predator’s high bidding will likely lead to its acquisition of more inputs. Usually, the acquisition of more inputs leads to the manufacture of more outputs. And increases in output generally result in lower prices to consumers.[Footnote 5] Id., at 677; R. Blair & J. Harrison, supra, at 66–67. Thus, a failed predatory-bidding scheme can be a “boon to consumers” in the same way that we considered a predatory-pricing scheme to be. See Brooke Group, supra, at 224. In addition, predatory bidding presents less of a direct threat of consumer harm than predatory pricing. A predatory-pricing scheme ultimately achieves success by charging higher prices to consumers. By contrast, a predatory-bidding scheme could succeed with little or no effect on consumer prices because a predatory bidder does not necessarily rely on raising prices in the output market to recoup its losses. Salop 676. Even if output prices remain constant, a predatory bidder can use its power as the predominant buyer of inputs to force down input prices and capture monopsony profits. Ibid. C The general theoretical similarities of monopoly and monopsony combined with the theoretical and practical similarities of predatory pricing and predatory bidding convince us that our two-pronged Brooke Group test should apply to predatory-bidding claims. The first prong of Brooke Group’s test requires little adaptation for the predatory-bidding context. A plaintiff must prove that the alleged predatory bidding led to below-cost pricing of the predator’s outputs. That is, the predator’s bidding on the buy side must have caused the cost of the relevant output to rise above the revenues generated in the sale of those outputs. As with predatory pricing, the exclusionary effect of higher bidding that does not result in below-cost output pricing “is beyond the practical ability of a judicial tribunal to control without courting intolerable risks of chilling legitimate” procompetitive conduct. 509 U. S., at 223. Given the multitude of procompetitive ends served by higher bidding for inputs, the risk of chilling procompetitive behavior with too lax a liability standard is as serious here as it was in Brooke Group. Consequently, only higher bidding that leads to below-cost pricing in the relevant output market will suffice as a basis for liability for predatory bidding. A predatory-bidding plaintiff also must prove that the defendant has a dangerous probability of recouping the losses incurred in bidding up input prices through the exercise of monopsony power. Absent proof of likely recoupment, a strategy of predatory bidding makes no economic sense because it would involve short-term losses with no likelihood of offsetting long-term gains. Cf. id., at 224 (citing Matsushita, 475 U. S., at 588–589). As with predatory pricing, making a showing on the recoupment prong will require “a close analysis of both the scheme alleged by the plaintiff and the structure and conditions of the relevant market.” Brooke Group, supra, at 226. Ross-Simmons has conceded that it has not satisfied the Brooke Group standard. Brief for Respondent 49; Tr. of Oral Arg. 49. Therefore, its predatory-bidding theory of liability cannot support the jury’s verdict. V For these reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Brooke Group dealt with a claim under the Robinson-Patman Act, but as we observed, “primary-line competitive injury under the Robinson-Patman Act is of the same general character as the injury inflicted by predatory pricing schemes actionable under §2 of the Sherman Act.” 509 U. S., at 221. Because of this similarity, the standard adopted in Brooke Group applies to predatory-pricing claims under §2 of the Sherman Act. Id., at 222. Footnote 2 If the predatory firm’s competitors in the input market and the output market are the same, then predatory bidding can also lead to the bidder’s acquisition of monopoly power in the output market. In that case, which does not appear to be present here, the monopsonist could, under certain market conditions, also recoup its losses by raising output prices to monopolistic levels. See Salop 679–682 (describing a monopsonist’s predatory strategy that depends upon raising prices in the output market). Footnote 3 Predatory bidding on inputs is not analytically different from predatory overbuying of inputs. Both practices fall under the rubric of monopsony predation and involve an input purchaser’s use of input prices in an attempt to exclude rival input purchasers. The economic effect of the practices is identical: input prices rise. In a predatory-bidding scheme, the purchaser causes prices to rise by offering to pay more for inputs. In a predatory-overbuying scheme, the purchaser causes prices to rise by demanding more of the input. Either way, input prices increase. Our use of the term “predatory bidding” is not meant to suggest that different legal treatment is appropriate for the economically identical practice of “predatory overbuying.” Footnote 4 Higher prices for inputs obviously benefit existing sellers of inputs and encourage new firms to enter the market for input sales as well. Footnote 5 Consumer benefit does not necessarily result at the first stage because the predator might not use its excess inputs to manufacture additional outputs. It might instead destroy the excess inputs. See Salop 677, n. 22. Also, if the same firms compete in the input and output markets, any increase in outputs by the predator could be offset by decreases in outputs from the predator’s struggling competitors.
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549.US.406
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At respondent’s trial for sexual assault on his 6-year-old stepdaughter, the court determined that the child was too distressed to testify and allowed respondent’s wife and a police detective to recount her out-of-court statements about the assaults, as permitted by Nevada law, rejecting respondent’s claim that admitting this testimony would violate the Confrontation Clause. He was convicted and sentenced to prison. On direct appeal, the Nevada Supreme Court found the child’s statements constitutional under Ohio v. Roberts, 448 U. S. 56, then this Court’s governing precedent, which had held that the Confrontation Clause permitted the admission of a hearsay statement made by a declarant unavailable to testify if the statement bore sufficient indicia of reliability, id., at 66. Respondent renewed his Confrontation Clause claim in a subsequent federal habeas petition, which the District Court denied. While his appeal was pending in the Ninth Circuit, this Court overruled Roberts in Crawford v. Washington, 541 U. S. 36, holding that “testimonial statements of witnesses absent from trial” are admissible “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness],” id., at 59, and concluding that Roberts’ interpretation of the Confrontation Clause was unsound, id., at 60. Respondent contended that had Crawford been applied to his case, the child’s statements would not have been admitted, and that it should have been applied because it was either an old rule in existence at the time of his conviction or a “ ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding,” Saffle v. Parks, 494 U. S. 484, 495 (quoting Teague v. Lane, 489 U. S. 288, 311 (plurality opinion)). The Ninth Circuit reversed, holding that Crawford was a new rule, but a watershed rule that applies retroactively to cases on collateral review. Held: Crawford announced a new rule of criminal procedure that does not fall within the Teague exception for watershed rules. Pp. 8–14. (a) Under Teague’s framework, an old rule applies both on direct and collateral review, but a new rule generally applies only to cases still on direct review and applies retroactively in a collateral proceeding only if it (1) is substantive or (2) is a watershed rule that implicates “the fundamental fairness and accuracy of the criminal proceeding.” Respondent’s conviction became final on direct appeal well before Crawford was decided, and Crawford announced a new rule, i.e., “a rule that … was not ‘dictated by precedent existing at the time the defendant’s conviction became final,’ ” Saffle, supra, at 488. It is flatly inconsistent with Roberts, which it overruled. “The explicit overruling of an earlier holding no doubt creates a new rule.” Saffle, supra, at 488. Prior to Crawford, “reasonable jurists,” Graham v. Collins, 506 U. S. 461, 467, could have concluded that Roberts governed the admission of testimonial hearsay statements made by an unavailable declarant. Pp. 8–9. (b) Because Crawford announced a new rule and because that rule is procedural and not substantive, it cannot be applied here unless it is a “watershed rul[e]” that implicates “the fundamental fairness and accuracy of the criminal proceeding.” This exception is “extremely narrow,” Schriro v. Summerlin, 542 U. S. 348, 351, and since Teague, this Court has rejected every claim that a new rule has satisfied the requirements necessary to qualify as a watershed. The Crawford rule does not meet those two requirements. Pp. 10–14. (1) First, the rule does not implicate “the fundamental fairness and accuracy of the criminal proceeding” because it is not necessary to prevent “an ‘ “impermissibly large risk” ’ ” of an inaccurate conviction, Summerlin, supra, at 356. Gideon v. Wainwright, 372 U. S. 335, the only case that this Court has identified as qualifying under this exception, provides guidance. There, the Court held that counsel must be appointed for an indigent defendant charged with a felony because, when such a defendant is denied representation, the risk of an unreliable verdict is intolerably high. The Crawford rule is not comparable to the Gideon rule. It is much more limited in scope, and its relationship to the accuracy of the factfinding process is far less direct and profound. Crawford overruled Roberts because Roberts was inconsistent with the original understanding of the Confrontation Clause, not because the Crawford rule’s overall effect would be to improve the accuracy of factfinding in criminal trials. With respect to testimonial out-of-court statements, Crawford is more restrictive than Roberts, which may improve the accuracy of factfinding in some criminal cases. But whatever improvement in reliability Crawford produced must be considered together with Crawford’s elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. It is thus unclear whether Crawford decreased or increased the number of unreliable out-of-court statements that may be admitted in criminal trials. But the question is not whether Crawford resulted in some net improvement in the accuracy of factfinding in criminal cases, but, as the dissent below noted, whether testimony admissible under Roberts is so much more unreliable that, without the Crawford rule, “ ‘the likelihood of an accurate conviction is seriously diminished,’ ” Summerlin, supra, at 352. Crawford did not effect a change of this magnitude. Pp. 11–13. (2) Second, the Crawford rule did not “alter [this Court’s] understanding of the bedrock procedural elements essential to the fairness of a proceeding,” Sawyer v. Smith, 497 U. S. 227, 242. The Court has “not hesitated to hold that less sweeping and fundamental rules” than Gideon’s do not qualify. Beard v. Banks, 542 U. S. 406, 418. The Crawford rule, while certainly important, is not in the same category with Gideon, which effected a profound and “ ‘sweeping’ ” change. Beard, supra, at 418. Pp. 13–14. 399 F. 3d 1010 and 408 F. 3d 1127, reversed and remanded. Alito, J., delivered the opinion for a unanimous Court.
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This case presents the question whether, under the rules set out in Teague v. Lane, 489 U. S. 288 (1989), our decision in Crawford v. Washington, 541 U. S. 36 (2004), is retroactive to cases already final on direct review. We hold that it is not. I A Respondent Marvin Bockting lived in Las Vegas, Nevada, with his wife, Laura Bockting, their 3-year-old daughter Honesty, and Laura’s 6-year-old daughter from a previous relationship, Autumn. One night, while respondent was at work, Autumn awoke from a dream crying, but she refused to tell her mother what was wrong, explaining: “ ‘[D]addy said you would make him leave and that he would beat my butt if I told you.’ ” App. 119. After her mother reassured her, Autumn said that respondent had frequently forced her to engage in numerous and varied sexual acts with him. Ibid. The next day, Laura Bockting confronted respondent and asked him to leave the house. He did so but denied any wrongdoing. Two days later, Laura called a rape crisis hotline and brought Autumn to the hospital for an examination. At the hospital, Detective Charles Zinovitch from the Las Vegas Metropolitan Police Department Sexual Assault Unit attempted to interview Autumn but found her too distressed to discuss the assaults. Detective Zinovitch then ordered a rape examination, which revealed strong physical evidence of sexual assaults. See Findings of Fact and Conclusions of Law and Order in Nevada v. Bockting, Case No. C–83110 (D. Nev., Sept. 5, 1994); App. 47, 119. Two days later, Detective Zinovitch interviewed Autumn in the presence of her mother, and at that time, Autumn provided a detailed description of acts of sexual assault carried out by respondent; Autumn also demonstrated those acts using anatomically correct dolls. Id., at 47–48; 119. Respondent was then arrested, and a state grand jury indicted him on four counts of sexual assault on a minor under 14 years of age. At respondent’s preliminary hearing, Autumn testified that she understood the difference between a truth and a lie, but she became upset when asked about the assaults. Although she initially agreed that respondent had touched her in a way that “[she] didn’t think he was supposed to touch [her],” id., at 14, she later stated that she could not remember how respondent had touched her or what she had told her mother or the detective, id., at 19–21. The trial court, however, found the testimony of Laura Bockting and Detective Zinovitch to be sufficient to hold respondent for trial. At trial, the court held a hearing outside the presence of the jury to determine whether Autumn could testify. After it became apparent that Autumn was too distressed to be sworn in, id., at 25–26, the State moved under Nev. Rev. Stat. §51.385 (2003)[Footnote 1] to allow Laura Bockting and Detective Zinovitch to recount Autumn’s statements regarding the sexual assaults. App. 25–27. Under the Nevada statute, out-of-court statements made by a child under 10 years of age describing acts of sexual assault or physical abuse of the child may be admitted if the court finds that the child is unavailable or unable to testify and that “the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness.” §51.385(1)(a). Over defense counsel’s objection that admission of this testimony would violate the Confrontation Clause, id., at 27–28, the trial court found sufficient evidence of reliability to satisfy §51.385. As a result of this ruling, Laura Bockting and Detective Zinovitch were permitted at trial to recount Autumn’s out-of-court statements about the assaults. Laura Bockting also testified that respondent was the only male who had had the opportunity to assault Autumn. In addition, the prosecution introduced evidence regarding Autumn’s medical exam. Respondent testified in his own defense and denied the assaults, and the defense brought out the fact that Autumn, unlike many children her age, had acquired some knowledge about sexual acts, since she had seen respondent and her mother engaging in sexual intercourse and had become familiar with sexual terms. Id., at 118. The jury found respondent guilty of three counts of sexual assault on a minor under the age of 14, and the trial court imposed two consecutive life sentences and another concurrent life sentence. B Respondent took an appeal to the Nevada Supreme Court, which handed down its final decision in 1993, more than a decade before Crawford.[Footnote 2] In analyzing respondent’s contention that the admission of Autumn’s out-of-court statements had violated his Confrontation Clause rights, the Nevada Supreme Court looked to Ohio v. Roberts, 448 U. S. 56 (1980), which was then the governing precedent of this Court. See Bockting v. State, 109 Nev. 103, 847 P. 2d 1364 (1993) (per curiam). Roberts had held that the Confrontation Clause permitted the admission of a hearsay statement made by a declarant who was unavailable to testify if the statement bore sufficient indicia of reliability, either because the statement fell within a firmly rooted hearsay exception or because there were “particularized guarantees of trustworthiness” relating to the statement in question. 448 U. S., at 66. Applying Roberts, the Nevada Supreme Court held that the admission of Autumn’s statements was constitutional because the circumstances surrounding the making of the statements provided particularized guarantees of trustworthiness. The Court cited the “natural spontaneity” of Autumn’s initial statements to her mother, her reiteration of the same account to Detective Zinovitch several days later, her use of anatomically correct dolls to demonstrate the assaults, and her detailed descriptions of sexual acts with which a 6-year-old would generally not be familiar. Bockting, supra, at 109–112, 847 P. 2d, at 1368–1370. C Respondent then filed a petition for a writ of habeas corpus with the United States District Court for the District of Nevada, arguing that the Nevada Supreme Court’s decision violated his Confrontation Clause rights. The District Court denied the petition, holding that respondent was not entitled to relief under the habeas statute, 28 U. S. C. §2254(d), because the Nevada Supreme Court’s decision was not “contrary to” and did not “involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Order in Bockting v. Bayer, No. CV–N–98–0764–ECR (Mar. 19, 2002), App. 69–70. Respondent then appealed to the United States Court of Appeals for the Ninth Circuit. While this appeal was pending, we issued our opinion in Crawford, in which we overruled Roberts and held that “[t]estimonial statements of witnesses absent from trial” are admissible “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness].” 541 U. S., at 59. See also Davis v. Washington, 547 U. S. ___ (2006). We noted that the outcome in Roberts—as well as the outcome in all similar cases decided by this Court—was consistent with the rule announced in Crawford, but we concluded that the interpretation of the Confrontation Clause set out in Roberts was unsound in several respects. See Crawford, supra, at 60 (“Although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales”). First, we observed that Roberts potentially excluded too much testimony because it imposed Confrontation Clause restrictions on nontestimonial hearsay not governed by that Clause. 541 U. S., at 60. At the same time, we noted, the Roberts test was too “malleable” in permitting the admission of ex parte testimonial statements. 541 U. S., at 60. We concluded: “Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ . . . Admitting statements deemed reliable by a judge is fundamentally at odds with the right to confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.” Id., at 61. D On appeal from the denial of his petition for writ of habeas corpus, respondent contended that if the rule in Crawford had been applied to his case, Autumn’s out-of-court statements could not have been admitted into evidence and the jury would not have convicted him. Respondent further argued that Crawford should have been applied to his case because the Crawford rule was either (1) an old rule in existence at the time of his conviction or (2) a “ ‘watershed’ ” rule that implicated “the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U. S. 484, 495 (1990) (quoting Teague, 489 U. S., at 311 (plurality opinion)). A divided panel of the Ninth Circuit reversed the District Court, holding that Crawford applies retroactively to cases on collateral review. Bockting v. Bayer, 399 F. 3d 1010, as amended, 408 F. 3d 1127 (2005). In the panel’s lead opinion, Judge McKeown concluded that Crawford announced a new rule of criminal procedure, 399 F. 3d, at 1014–1016, but that the decision was nevertheless retroactive on collateral review because it announced a watershed rule that “rework[ed] our understanding of bedrock criminal procedure,” id., at 1016.[Footnote 3] Judge Noonan concurred, but his preferred analysis differed from Judge McKeown’s. Judge Noonan believed that Crawford did not announce a new rule, 399 F. 3d, at 1022–1024, but “[a]s an alternative to [this] analysis and in order to provide a precedent for [the] court,” he “also concur[red] in Judge McKeown’s analysis and opinion,” id., at 1024. Judge Wallace, concurring and dissenting, agreed with Judge McKeown that Crawford announced a new procedural rule but arguing that Crawford did not rise to the level of a watershed rule under this Court’s jurisprudence. The Ninth Circuit denied rehearing en banc, with nine judges dissenting. 418 F. 3d 1055 (2005). The panel’s decision that Crawford is retroactive to cases on collateral review conflicts with the decision of every other Court of Appeals and State Supreme Court that has addressed this issue.[Footnote 4] We granted certiorari to resolve this conflict. 547 U. S. ___ (2006). II A In Teague and subsequent cases, we have laid out the framework to be used in determining whether a rule announced in one of our opinions should be applied retroactively to judgments in criminal cases that are already final on direct review. Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. See Griffith v. Kentucky, 479 U. S. 314 (1987). A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “ ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle, supra, at 495 (quoting Teague, supra, at 311 (plurality opinion)). B In this case, it is undisputed that respondent’s conviction became final on direct appeal well before Crawford was decided. We therefore turn to the question whether Crawford applied an old rule or announced a new one. A new rule is defined as “a rule that . . . was not ‘dictated by precedent existing at the time the defendant’s conviction became final.’ ” Saffle, supra, at 488 (quoting Teague, supra, at 301 (plurality opinion); emphasis in original). Applying this definition, it is clear that Crawford announced a new rule. The Crawford rule was not “dictated” by prior precedent. Quite the opposite is true: The Crawford rule is flatly inconsistent with the prior governing precedent, Roberts, which Crawford overruled. See Davis, 547 U. S., at ___ (slip op., at ___). “The explicit overruling of an earlier holding no doubt creates a new rule.” Saffle, supra, at 488. In concluding that Crawford merely applied an old rule, Judge Noonan relied on our observation in Crawford that the holdings in our prior decisions, including those that applied the Roberts rule, had been generally consistent with the rule announced in Crawford (and with the Framers’ understanding of the meaning of the Confrontation Clause, which provided the basis for the Crawford decision). See 541 U. S., at 57–59. But the Crawford Court was quick to note that “the rationales” of our prior decisions had been inconsistent with the Crawford rule. Id., at 60. “ ‘The “new rule” principle … validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.’ ” Lockhart v. Fretwell, 506 U. S. 364, 372–373 (1993) (quoting Butler v. McKellar, 494 U. S. 407, 414 (1990)). And it is stating the obvious to say that, prior to Crawford, “reasonable jurists,” Graham v. Collins, 506 U. S. 461, 467 (1993), could have reached the conclusion that the Roberts rule was the rule that governed the admission of hearsay statements made by an unavailable declarant. Because the Crawford rule was not dictated by the governing precedent existing at the time when respondent’s conviction became final, the Crawford rule is a new rule. III A Because Crawford announced a “new rule” and because it is clear and undisputed that the rule is procedural and not substantive, that rule cannot be applied in this collateral attack on respondent’s conviction unless it is a “ ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle, 494 U. S., at 495 (quoting Teague, 489 U. S., at 311 (plurality opinion)). This exception is “extremely narrow,” Schriro v. Summerlin, 542 U. S. 348, 352 (2004). We have observed that it is “ ‘unlikely’ ” that any such rules “ ‘ha[ve] yet to emerge,’ ” ibid. (quoting Tyler v. Cain, 533 U. S. 656 (2001); internal quotation marks omitted); see also O’Dell v. Netherland, 521 U. S. 151, 157 (1997); Graham, supra, at 478; Teague, supra, at 313 (plurality opinion). And in the years since Teague, we have rejected every claim that a new rule satisfied the requirements for watershed status. See, e.g., Summerlin, supra (rejecting retroactivity for Ring v. Arizona, 536 U. S. 584 (2002)); Beard v. Banks, 542 U. S. 406 (2004) (rejecting retroactivity for Mills v. Maryland, 486 U. S. 367 (1988)); O’Dell, supra (rejecting retroactivity for Simmons v. South Carolina, 512 U. S. 154 (1994)); Gilmore v. Taylor, 508 U. S. 333 (1993) (rejecting retroactivity for a new rule relating to jury instructions on homicide); Sawyer v. Smith, 497 U. S. 227 (1990) (rejecting retroactivity for Caldwell v. Mississippi, 472 U. S. 320 (1985)). In order to qualify as watershed, a new rule must meet two requirements. First, the rule must be necessary to prevent “an ‘ “impermissibly large risk” ’ ” of an inaccurate conviction. Summerlin, supra, at 356; see also Tyler, 533 U. S., at 665. Second, the rule must “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Ibid. (internal quotation marks and emphasis omitted). We consider each of these requirements in turn. B The Crawford rule does not satisfy the first requirement relating to an impermissibly large risk of an inaccurate conviction. To be sure, the Crawford rule reflects the Framers’ preferred mechanism (cross-examination) for ensuring that inaccurate out-of-court testimonial statements are not used to convict an accused. But in order for a new rule to meet the accuracy requirement at issue here, “[i]t is … not enough … to say that [the] rule is aimed at improving the accuracy of trial,” Sawyer, 497 U. S., at 242 or that the rule “is directed toward the enhancement of reliability and accuracy in some sense,” id., at 243. Instead, the question is whether the new rule remedied “an ‘ “impermissibly large risk” ’ ” of an inaccurate conviction. Summerlin, supra, at 366. Guidance in answering this question is provided by Gideon v. Wainwright, 372 U. S. 335 (1963), to which we have repeatedly referred in discussing the meaning of the Teague exception at issue here. See, e.g., Beard, supra, at 417; Saffle, supra, at 495; Gilmore, supra, at 364 (Blackmun, J., dissenting). In Gideon, the only case that we have identified as qualifying under this exception, the Court held that counsel must be appointed for any indigent defendant charged with a felony. When a defendant who wishes to be represented by counsel is denied representation, Gideon held, the risk of an unreliable verdict is intolerably high. See Mickens v. Taylor, 535 U. S. 162, 166 (2002); United States v. Cronic, 466 U. S. 648, 658–659 (1984); Gideon, supra, at 344–345. The new rule announced in Gideon eliminated this risk. The Crawford rule is in no way comparable to the Gideon rule. The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound. Crawford overruled Roberts because Roberts was inconsistent with the original understanding of the meaning of the Confrontation Clause, not because the Court reached the conclusion that the overall effect of the Crawford rule would be to improve the accuracy of fact finding in criminal trials. Indeed, in Crawford we recognized that even under the Roberts rule, this Court had never specifically approved the introduction of testimonial hearsay statements. 542 U. S., at 57–60. Accordingly, it is not surprising that the overall effect of Crawford with regard to the accuracy of fact-finding in criminal cases is not easy to assess. With respect to testimonial out-of-court statements, Crawford is more restrictive than was Roberts, and this may improve the accuracy of fact-finding in some criminal cases. Specifically, under Roberts, there may have been cases in which courts erroneously determined that testimonial statements were reliable. But see 418 F. 3d, at 1058 (O’Scannlain, J., dissenting from denial of rehearing en banc) (observing that it is unlikely that this occurred “in anything but the exceptional case”). But whatever improvement in reliability Crawford produced in this respect must be considered together with Crawford’s elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability. It is thus unclear whether Crawford, on the whole, decreased or increased the number of unreliable out-of-court statements that may be admitted in criminal trials. But the question here is not whether Crawford resulted in some net improvement in the accuracy of fact finding in criminal cases. Rather, “the question is whether testimony admissible under Roberts is so much more unreliable than that admissible under Crawford that the Crawford rule is ‘ one without which the likelihood of an accurate conviction is seriously diminished.’ ” 399 F. 3d, at 1028 (Wallace, J., concurring and dissenting) (quoting Summerlin, 542 U. S., at 352 (internal quotation marks omitted; emphasis in original). Crawford did not effect a change of this magnitude. C The Crawford rule also did not “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Sawyer, supra, at 242 (internal quotations marks omitted and emphasis in original). Contrary to the suggestion of the Court of Appeals, see 399 F. 3d, at 1019 (relying on the conclusion that “the right of cross-examination as an adjunct to the constitutional right of confrontation” is a “bedrock procedural rul[e]”), this requirement cannot be met simply by showing that a new procedural rule is based on a “bedrock” right. We have frequently held that the Teague bar to retroactivity applies to new rules that are based on “bedrock” constitutional rights. See, e.g., Beard, 542 U. S., at 418. Similarly, “[t]hat a new procedural rule is ‘fundamental’ in some abstract sense is not enough.” Summerlin, 542 U. S., at 352. Instead, in order to meet this requirement, a new rule must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding. In applying this requirement, we again have looked to the example of Gideon, and “we have not hesitated to hold that less sweeping and fundamental rules” do not qualify. Beard, supra, at 418. In this case, it is apparent that the rule announced in Crawford, while certainly important, is not in the same category with Gideon. Gideon effected a profound and “ ‘sweeping’ ” change. Beard, supra, at 418 (quoting O’Dell, 521 U. S., at 167). The Crawford rule simply lacks the “primacy” and “centrality” of the Gideon rule, Saffle, 494 U. S., at 495, and does not qualify as a rule that “alter[ed] our understanding of the bedrock procedural elements essential to the fairness of a proceeding,” Sawyer, 497 U. S., at 242 (internal quotation marks and emphasis omitted). IV In sum, we hold that Crawford announced a “new rule” of criminal procedure and that this rule does not fall within the Teague exception for watershed rules. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Section 51.385 provides, in relevant part: “1. [A] statement made by a child under the age of 10 years describing any act of sexual conduct performed with or on the child or any act of physical abuse of the child is admissible in a criminal proceeding regarding that act of sexual conduct or physical abuse if: “(a) The court finds, in a hearing out of the presence of the jury, that the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness; and “(b) The child testifies at the proceeding or is unavailable or unable to testify. “2. In determining the trustworthiness of a statement, the court shall consider, without limitation, whether: “(a) The statement was spontaneous; “(b) The child was subjected to repetitive questioning; “(c) The child had a motive to fabricate; “(d) The child used terminology unexpected of a child of similar age; and “(e) The child was in a stable mental state.” Footnote 2 The State Supreme Court initially dismissed respondent’s appeal in 1989, Bockting v. State, 105 Nev. 1023, 810 P. 2d 317 (unpublished table opinion), but we granted respondent’s petition for a writ of certiorari and vacated and remanded the case for reconsideration in light of Idaho v. Wright, 497 U. S. 805 (1990), see Bockting v. Nevada, 497 U. S. 1021 (1990). Footnote 3 Judge McKeown then held respondent merited habeas corpus relief under the Antiterrorism and Effective Death Penalty Act of 1996, because that statute incorporates our Teague v. Lane, 489 U. S. 288 (1989) retroactivity analysis. 399 F. 3d, at 1021–1022. Footnote 4 See, e.g., Lave v. Dretke, 444 F. 3d 333 (CA5 2006); Espy v. Massac, 443 F. 3d 1362 (CA11 2006); Murillo v. Frank, 402 F. 3d 786 (CA7 2005); Dorchy v. Jones, 398 F. 3d 783 (CA6 2005); Brown v. Uphoff, 381 F. 3d 1219 (CA10 2004); Mungo v. Duncan, 393 F. 3d 327 (CA2 2004); Edwards v. People, 129 P. 3d 977 (Colo. 2006) (en banc); Ennis v. State, 122 Nev. ___, 137 P. 3d 1095 (2006); Danforth v. State, 718 N. W. 2d 451 (Minn. 2006); State v. Williams, 695 N. W. 2d 23 (Iowa 2005); Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005); In re Markel, 154 Wash. 2d 262, 111 P. 3d 249 (2005).
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551.US.537
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Plaintiff-respondent Robbins’s Wyoming guest ranch is a patchwork of land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the National Government. The previous owner granted the United States an easement to use and maintain a road running through the ranch to federal land in return for a right-of-way to maintain a section of road running across federal land to otherwise isolated parts of the ranch. When Robbins bought the ranch, he took title free of the easement, which the Bureau had not recorded. Robbins continued to graze cattle and run guest cattle drives under grazing permits and a Special Recreation Use Permit (SRUP) issued by the Bureau of Land Management. Upon learning that the easement was never recorded, a Bureau official demanded that Robbins regrant it, but Robbins declined. Robbins claims that after negotiations broke down, defendant-petitioners (defendants) began a campaign of harassment and intimidation to force him to regrant the lost easement. Robbins’s suit for damages and declaratory and injunctive relief now includes a Racketeer Influenced and Corrupt Organizations Act (RICO) claim that defendants repeatedly tried to extort an easement from him and a similarly grounded Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, claim that defendants violated his Fourth and Fifth Amendment rights. Ultimately, the District Court denied defendants’ motion to dismiss the RICO claim based on qualified immunity. As to the Bivens claims, it dismissed what Robbins called his Fourth Amendment malicious prosecution claim and his Fifth Amendment due process claims, but declined to dismiss a Fifth Amendment claim of retaliation for the exercise of Robbins’s rights to exclude the Government from his property and to refuse to grant a property interest without compensation. It adhered to this denial on summary judgment. The Tenth Circuit affirmed. Held: 1. Robbins does not have a private action for damages of the sort recognized in Bivens. Pp. 9–23. (a) In deciding whether to devise a Bivens remedy for retaliation against the exercise of ownership rights, the Court’s first step is to ask whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding damages remedy. Bush v. Lucas, 462 U. S. 367, 378. But even absent an alternative, a Bivens remedy is a subject of judgment: “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed … to any special factors counselling hesitation before authorizing a new kind of federal litigation.” Ibid. Pp. 9–11. (b) For purposes of step one, Robbins’s difficulties with the Bureau can be divided into four categories. The first, torts or tort-like injuries, includes an unauthorized survey of the desired easement’s terrain and an illegal entry into Robbins’s lodge. In each instance, he had a civil damages remedy for trespass, which he did not pursue. The second category, charges brought against Robbins, includes administrative claims for trespass and other land-use violations, a fine for an unauthorized road repair, and two criminal charges. Robbins had the opportunity to contest all of the administrative charges; he fought some of the land-use and trespass citations, and challenged the road repair fine as far as the Interior Board of Land Appeals (IBLA), but did not seek judicial review after losing there. He exercised his right to jury trial on the criminal complaints. The fact that the jury took 30 minutes to acquit him tends to support his baseless-prosecution charge; but the federal trial judge did not find the Government’s case thin enough to justify attorney’s fees, and Robbins appealed that ruling late. The third category, unfavorable agency actions, involved a 1995 cancellation of the right-of-way given to Robbins’s predecessor in return for the Government’s unrecorded easement, a 1995 decision to reduce the SRUP from five years to one, and in 1999, the SRUP’s termination and a grazing permit’s revocation. Administrative review was available for each claim, subject to ultimate judicial review under the Administrative Procedure Act. Robbins did not appeal the 1995 decisions, stopped after an IBLA appeal of the SRUP denial, and obtained an IBLA stay of the grazing permit revocation. The fourth category includes three events that elude classification. An altercation between Robbins and his neighbor did not implicate the Bureau, and no criminal charges were filed. Bureau employees’ videotaping of ranch guests during a cattle drive, though annoying and possibly bad for business, may not have been unlawful, depending, e.g., on whether the guests were on public or private land. Also, the guests might be the proper plaintiffs in any tort action, and any tort might be chargeable against the Government, not its employees. Likewise up in the air is the significance of an attempt to pressure a Bureau of Indian Affairs employee to impound Robbins’s cattle. An impoundment’s legitimacy would have depended on whether the cattle were on private or public land, and no impoundment actually occurred. Thus, Robbins has an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints. This state of law gives him no intuitively meritorious case for a new constitutional cause of action, but neither does it plainly answer no to the question whether he should have it. Pp. 11–14. (c) This, then, is a case for Bivens step two, for weighing reasons for and against creating a new cause of action, as common law judges have always done. Robbins concedes that any single action might have been brushed aside as a small imposition, but says that in the aggregate the campaign against him amounted to coercion to extract the easement and should be redressed collectively. On the other side of the ledger is the difficulty in defining a workable cause of action. Robbins’s claim of retaliation for exercising his property right to exclude the Government does not fit this Court’s retaliation cases, which involve an allegation of impermissible purpose and motivation—e.g., an employee is fired after speaking out on matters of public concern, Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 675—and whose outcome turns on “what for” questions—what was the Government’s purpose in firing the employee and would he have been fired anyway. Such questions have definite answers, and this Court has established methods to identify the presence of an illicit reason. Robbins alleges not that the Government’s means were illegitimate but that the defendants simply demanded too much and went too far. However, a “too much” kind of liability standard can never be as reliable as a “what for” one. Most of the offending actions are legitimate tactics designed to improve the Government’s negotiating position. Although the Government is no ordinary landowner, in many ways it deals with its neighbors as one owner among the rest. So long as defendants had authority to withhold or withdraw Robbins’s permission to use Government land and to enforce the trespass and land-use rules, they were within their rights to make it plain that Robbins’s willingness to give an easement would determine how complaisant they would be about his trespasses on public land. As for Robbins’s more abstract claim, recognizing a Bivens action for retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations. Pp. 14–23. 2. RICO does not give Robbins a claim against defendants in their individual capacities. Robbins argues that the predicate act for his RICO claim is a violation of the Hobbs Act, which criminalizes interference with interstate commerce by extortion, along with attempts or conspiracies, 18 U. S. C. §1951(a), and defines extortion as “the obtaining of property from another, with his consent … under color of official right,” §1951(b)(2). Robbins’s claim fails because the Hobbs Act does not apply when the National Government is the intended beneficiary of allegedly extortionate acts. That Act does not speak explicitly to efforts to obtain property for the Government rather than a private party, so the question turns on the common law conception of “extortion,” which Congress is presumed to have incorporated into the Act in 1946, see, e.g., Scheidler v. National Organization for Women, Inc., 537 U. S. 393, 402. At common law, extortion “by the public official was the rough equivalent of what [is] now describe[d] as ‘taking a bribe.’ ” Evans v. United States, 504 U. S. 255, 260. While public officials were not immune from extortion charges at common law, that crime focused on the harm of public corruption, by selling public favors for private gain, not on the harm caused by overzealous efforts to obtain property on the Government’s behalf. The importance of the line between public and private beneficiaries is confirmed by this Court’s case law, which is completely barren of an example of extortion under color of official right undertaken for the sole benefit of the Government. More tellingly, Robbins cites no decision by any court, much less this one, in the Hobbs Act’s entire 60-year history finding extortion in Government employees’ efforts to get property for the Government’s exclusive benefit. United States v. Green, 350 U. S. 415, 420, which held that “extortion as defined in the [Hobbs Act] in no way depends upon having a direct benefit conferred on the person who obtains the property,” does not support Robbins’s claim that Congress could not have meant to prohibit extortionate acts in the interest of private entities like unions, but ignore them when the intended beneficiary is the Government. Without some other indication from Congress, it is not reasonable to assume that the Hobbs Act (let alone RICO) was intended to expose all federal employees to extortion charges whenever they stretch in trying to enforce Government property claims. Because defendants’ conduct does not fit the traditional definition of extortion, it also does not survive as a RICO predicate offense on the theory that it is “chargeable under [Wyoming] law and punishable by imprisonment for more than one year,” 18 U. S. C. §1961(1)(A). Pp. 23–28. 433 F. 3d 755, reversed and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Breyer, and Alito, JJ., joined, and in which Stevens and Ginsburg, JJ., joined as to Part III. Thomas, J., filed a concurring opinion, in which Scalia, J., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined.
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Officials of the Bureau of Land Management stand accused of harassment and intimidation aimed at extracting an easement across private property. The questions here are whether the landowner has either a private action for damages of the sort recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), or a claim against the officials in their individual capacities under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§1961–1968 (2000 ed. and Supp. IV). We hold that neither action is available. I A Plaintiff-respondent Frank Robbins owns and operates the High Island Ranch, a commercial guest resort in Hot Springs County, Wyoming, stretching across some 40 miles of territory. The ranch is a patchwork of mostly contiguous land parcels intermingled with tracts belonging to other private owners, the State of Wyoming, and the National Government. Its natural resources include wildlife and mineral deposits, and its mountainous western portion, called the upper Rock Creek area, is a place of great natural beauty. In response to persistent requests by environmentalists and outdoor enthusiasts, the Bureau tried to induce the ranch’s previous owner, George Nelson, to grant an easement for public use over South Fork Owl Creek Road, which runs through the ranch and serves as a main route to the upper Rock Creek area. For a while, Nelson refused from fear that the public would disrupt his guests’ activities, but shortly after agreeing to sell the property to Robbins, in March 1994, Nelson signed a nonexclusive deed of easement giving the United States the right to use and maintain the road along a stretch of his property. In return, the Bureau agreed to rent Nelson a right-of-way to maintain a different section of the road as it runs across federal property and connects otherwise isolated parts of Robbins’s holdings. In May 1994, Nelson conveyed the ranch to Robbins, who continued to graze cattle and run guest cattle drives in reliance on grazing permits and a Special Recreation Use Permit (SRUP) issued by the Bureau. But Robbins knew nothing about Nelson’s grant of the easement across South Fork Owl Creek Road, which the Bureau had failed to record, and upon recording his warranty deed in Hot Springs County, Robbins took title to the ranch free of the easement, by operation of Wyoming law. See Wyo. Stat. Ann. §34–1–120 (2005). When the Bureau’s employee Joseph Vessels[Footnote 1] discovered, in June 1994, that the Bureau’s inaction had cost it the easement, he telephoned Robbins and demanded an easement to replace Nelson’s. Robbins refused but indicated he would consider granting one in return for something. In a later meeting, Vessels allegedly told Robbins that “ ‘the Federal Government does not negotiate,’ ” and talks broke down. Brief for Respondent 5. Robbins says that over the next several years the defendant-petitioners (hereinafter defendants), who are current and former employees of the Bureau, carried on a campaign of harassment and intimidation aimed at forcing him to regrant the lost easement. B Robbins concedes that any single one of the offensive and sometimes illegal actions by the Bureau’s officials might have been brushed aside as a small imposition, but says that in the aggregate the campaign against him amounted to coercion to extract the easement and should be redressed collectively. The substance of Robbins’s claim, and the degree to which existing remedies available to him were adequate, can be understood and assessed only by getting down to the details, which add up to a long recitation.[Footnote 2] In the summer of 1994, after the fruitless telephone conversation in June, Vessels wrote to Robbins for permission to survey his land in the area of the desired easement. Robbins said no, that it would be a waste of time for the Bureau to do a survey without first reaching agreement with him. Vessels went ahead with a survey anyway, trespassed on Robbins’s land, and later boasted about it to Robbins. Not surprisingly, given the lack of damage to his property, Robbins did not file a trespass complaint in response. Mutual animosity grew, however, and one Bureau employee, Edward Parodi, was told by his superiors to “look closer” and “investigate harder” for possible trespasses and other permit violations by Robbins. App. 128–129. Parodi also heard colleagues make certain disparaging remarks about Robbins, such as referring to him as “the rich SOB from Alabama [who] got [the Ranch].” Id., at 121. Parodi became convinced that the Bureau had mistreated Robbins and described its conduct as “the volcanic point” in his decision to retire. Id., at 133. Vessels and his supervisor, defendant Charles Wilkie, continued to demand the easement, under threat to cancel the reciprocal maintenance right-of-way that Nelson had negotiated. When Robbins would not budge, the Bureau canceled the right-of-way, citing Robbins’s refusal to grant the desired easement and failure even to pay the rental fee. Robbins did not appeal the cancellation to the Interior Board of Land Appeals (IBLA) or seek judicial review under the Administrative Procedure Act (APA), 5 U. S. C. §702. In August 1995, Robbins brought his cattle to a water source on property belonging to his neighbor, LaVonne Pennoyer. An altercation ensued, and Pennoyer struck Robbins with her truck while he was riding a horse. Plaintiff-Appellee’s Supp. App. in No. 04–8016 (CA10), pp. 676–681 (hereinafter CA10 App.); Pl. Exh. 2, Record 164–166; Pl. Exh. 35a, id., at 102–108. Defendant Gene Leone fielded a call from Pennoyer regarding the incident, encouraged her to contact the sheriff, and himself placed calls to the sheriff suggesting that Robbins be charged with trespass. After the incident, Parodi claims that Leone told him: “I think I finally got a way to get [Robbins’s] permits and get him out of business.” App. 125, 126. In October 1995, the Bureau claimed various permit violations and changed the High Island Ranch’s 5-year SRUP to a SRUP subject to annual renewal. According to Robbins, losing the 5-year SRUP disrupted his guest ranching business, owing to the resulting uncertainty about permission to conduct cattle drives. Robbins declined to seek administrative review, however, in part because Bureau officials told him that the process would be lengthy and that his permit would be suspended until the IBLA reached a decision.[Footnote 3] Beginning in 1996, defendants brought administrative charges against Robbins for trespass and other land-use violations. Robbins claimed some charges were false, and others unfairly selective enforcement, and he took all of them to be an effort to retaliate for refusing the Bureau’s continuing demands for the easement. He contested a number of these charges, but not all of them, administratively. In the spring of 1997, the South Fork Owl Creek Road, the only way to reach the portions of the ranch in the Rock Creek area, became impassable. When the Bureau refused to repair the section of road across federal land, Robbins took matters into his own hands and fixed the public road himself, even though the Bureau had refused permission. The Bureau fined Robbins for trespass, but offered to settle the charge and entertain an application to renew the old maintenance right-of-way. Instead, Robbins appealed to the IBLA, which found that Robbins had admitted the unauthorized repairs when he sent the Bureau a bill for reimbursement. The Board upheld the fine, In re Robbins, 146 I. B. L. A. 213 (1998), and rejected Robbins’s claim that the Bureau was trying to “ ‘blackmail’ ” him into providing the easement; it said that “[t]he record effectively shows … intransigence was the tactic of Robbins, not [the] BLM.” Id., at 219. Robbins did not seek judicial review of the IBLA’s decision. In July 1997, defendant Teryl Shryack and a colleague entered Robbins’s property, claiming the terms of a fence easement as authority. Robbins accused Shryack of unlawful entry, tore up the written instrument, and ordered her off his property. Later that month, after a meeting about trespass issues with Bureau officials, Michael Miller, a Bureau law enforcement officer, questioned Robbins without advance notice and without counsel about the incident with Shryack. The upshot was a charge with two counts of knowingly and forcibly impeding and interfering with a federal employee, in violation of 18 U. S. C. §111 (2000 ed. and Supp. IV), a crime with a penalty of up to one year in prison. A jury acquitted Robbins in December, after deliberating less than 30 minutes. United States v. Robbins, 179 F. 3d 1268, 1269 (CA10 1999). According to a news story, the jurors “were appalled at the actions of the government” and one said that “Robbins could not have been railroaded any worse … if he worked for the Union Pacific.” CA10 App. 852. Robbins then moved for attorney’s fees under the Hyde Amendment, §617, 111 Stat. 2519, note following 18 U. S. C. §3600A, arguing that the position of the United States was vexatious, frivolous, or in bad faith. The trial judge denied the motion, and Robbins appealed too late. See 179 F. 3d, at 1269–1270. In 1998, Robbins brought the lawsuit now before us, though there was further vexation to come. In June 1999, the Bureau denied Robbins’s application to renew his annual SRUP, based on an accumulation of land-use penalties levied against him. Robbins appealed, the IBLA affirmed, In re Robbins, 154 I. B. L. A. 93 (2000), and Robbins did not seek judicial review. Then, in August, the Bureau revoked the grazing permit for High Island Ranch, claiming that Robbins had violated its terms when he kept Bureau officials from passing over his property to reach public lands. Robbins appealed to the IBLA, which stayed the revocation pending resolution of the appeal. Order in Robbins v. Bureau of Land Management, IBLA 2000–12 (Nov. 10, 1999), CA10 App. 1020. The stay held for several years, despite periodic friction. Without a SRUP, Robbins was forced to redirect his guest cattle drives away from federal land and through a mountain pass with unmarked property boundaries. In August 2000, Vessels and defendants Darrell Barnes and Miller tried to catch Robbins trespassing in driving cattle over a corner of land administered by the Bureau. From a nearby hilltop, they videotaped ranch guests during the drive, even while the guests sought privacy to relieve themselves. That afternoon, Robbins alleges, Barnes and Miller broke into his guest lodge, left trash inside, and departed without closing the lodge gates. The next summer, defendant David Wallace spoke with Preston Smith, an employee of the Bureau of Indian Affairs who manages lands along the High Island Ranch’s southern border, and pressured him to impound Robbins’s cattle. Smith told Robbins, but did nothing more. Finally, in January 2003, tension actually cooled to the point that Robbins and the Bureau entered into a settlement agreement that, among other things, established a procedure for informal resolution of future grazing disputes and stayed 16 pending administrative appeals with a view to their ultimate dismissal, provided that Robbins did not violate certain Bureau regulations for a 2-year period. The settlement came apart, however, in January 2004, when the Bureau began formal trespass proceedings against Robbins and unilaterally voided the settlement agreement. Robbins tried to enforce the agreement in federal court, but a district court denied relief in a decision affirmed by the Court of Appeals in February 2006. Robbins v. Bureau of Land Management, 438 F. 3d 1074 (CA10). C In this lawsuit (brought, as we said, in 1998), Robbins asks for compensatory and punitive damages as well as declaratory and injunctive relief. Although he originally included the United States as a defendant, he voluntarily dismissed the Government, and pressed forward with a RICO claim charging defendants with repeatedly trying to extort an easement from him, as well as a similarly grounded Bivens claim that defendants violated his Fourth and Fifth Amendment rights. Defendants filed a motion to dismiss on qualified immunity and failure to state a claim, which the District Court granted, holding that Robbins inadequately pleaded damages under RICO and that the APA and the Federal Tort Claims Act (FTCA), 28 U. S. C. §1346, were effective alternative remedies that precluded Bivens relief. The Court of Appeals for the Tenth Circuit reversed on both grounds, 300 F. 3d 1208, 1211 (2002), although it specified that Bivens relief was available only for those “constitutional violations committed by individual federal employees unrelated to final agency action,” 300 F. 3d, at 1212. On remand, defendants again moved to dismiss on qualified immunity. As to the RICO claim, the District Court denied the motion; as to Bivens, it dismissed what Robbins called the Fourth Amendment claim for malicious prosecution and those under the Fifth Amendment for due process violations, but it declined to dismiss the Fifth Amendment claim of retaliation for the exercise of Robbins’s right to exclude the Government from his property and to refuse any grant of a property interest without compensation. After limited discovery, defendants again moved for summary judgment on qualified immunity. The District Court adhered to its earlier denial. This time, the Court of Appeals affirmed, after dealing with collateral order jurisdiction to consider an interlocutory appeal of the denial of qualified immunity, 433 F. 3d 755, 761 (2006) (citing Mitchell v. Forsyth, 472 U. S. 511, 530 (1985)). It held that Robbins had a clearly established right to be free from retaliation for exercising his Fifth Amendment right to exclude the Government from his private property, 433 F. 3d, at 765–767, and it explained that Robbins could go forward with the RICO claim because Government employees who “engag[e] in lawful actions with an intent to extort a right-of-way from [a landowner] rather than with an intent to merely carry out their regulatory duties” commit extortion under Wyoming law and within the meaning of the Hobbs Act, 18 U. S. C. §1951. 433 F. 3d, at 768. The Court of Appeals rejected the defense based on a claim of the Government’s legal entitlement to demand the disputed easement: “if an official obtains property that he has lawful authority to obtain, but does so in a wrongful manner, his conduct constitutes extortion under the Hobbs Act.” Id., at 769. Finally, the Court of Appeals said again that “Robbins’[s] allegations involving individual action unrelated to final agency action are permitted under Bivens.” Id., at 772. The appeals court declined defendants’ request “to determine which allegations remain and which are precluded,” however, because defendants had not asked the District Court to sort them out. Ibid. We granted certiorari, 549 U. S. ___ (2006), and now reverse. II The first question is whether to devise a new Bivens damages action for retaliating against the exercise of ownership rights, in addition to the discrete administrative and judicial remedies available to a landowner like Robbins in dealing with the Government’s employees.[Footnote 4] Bivens, 403 U. S. 388, held that the victim of a Fourth Amendment violation by federal officers had a claim for damages, and in the years following we have recognized two more nonstatutory damages remedies, the first for employment discrimination in violation of the Due Process Clause, Davis v. Passman, 442 U. S. 228 (1979), and the second for an Eighth Amendment violation by prison officials, Carlson v. Green, 446 U. S. 14 (1980). But we have also held that any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a Bivens remedy unjustified. We have accordingly held against applying the Bivens model to claims of First Amendment violations by federal employers, Bush v. Lucas, 462 U. S. 367 (1983), harm to military personnel through activity incident to service, United States v. Stanley, 483 U. S. 669 (1987); Chappell v. Wallace, 462 U. S. 296 (1983), and wrongful denials of Social Security disability benefits, Schweiker v. Chilicky, 487 U. S. 412 (1988). We have seen no case for extending Bivens to claims against federal agencies, FDIC v. Meyer, 510 U. S. 471 (1994), or against private prisons, Correctional Services Corp. v. Malesko, 534 U. S. 61 (2001). Whatever the ultimate conclusion, however, our consideration of a Bivens request follows a familiar sequence, and on the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a Bivens remedy may require two steps. In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. Bush, supra, at 378. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: “the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.” Bush, supra, at 378. A In this factually plentiful case, assessing the significance of any alternative remedies at step one has to begin by categorizing the difficulties Robbins experienced in dealing with the Bureau. We think they can be separated into four main groups: torts or tort-like injuries inflicted on him, charges brought against him, unfavorable agency actions, and offensive behavior by Bureau employees falling outside those three categories. Tortious harm inflicted on him includes Vessels’s unauthorized survey of the terrain of the desired easement and the illegal entry into the lodge, and in each instance, Robbins had a civil remedy in damages for trespass. Understandably, he brought no such action after learning about the survey, which was doubtless annoying but not physically damaging. For the incident at the lodge, he chose not to pursue a tort remedy, though there is no question that one was available to him if he could prove his allegations. Cf. Correctional Services Corp., supra, at 72–73 (considering availability of state tort remedies in refusing to recognize a Bivens remedy). The charges brought against Robbins include a series of administrative claims for trespass and other land-use violations, a fine for the unauthorized road repair in 1997, and the two criminal charges that same year. Robbins had the opportunity to contest all of the administrative charges; he did fight some (but not all) of the various land-use and trespass citations, and he challenged the road repair fine as far as the IBLA, though he did not take advantage of judicial review when he lost in that tribunal.[Footnote 5] He exercised his right to jury trial on the criminal complaints, and although the rapid acquittal tended to support his charge of baseless action by the prosecution (egged on by Bureau employees), the federal judge who presided at the trial did not think the Government’s case thin enough to justify awarding attorney’s fees, and Robbins’s appeal from that decision was late. See Robbins, 179 F. 3d, at 1269–1270. The trial judge’s denial of fees may reflect facts that dissuaded Robbins from bringing a state-law action for malicious prosecution, though it is also possible that a remedy would have been unavailable against federal officials, see Blake v. Rupe, 651 P. 2d 1096, 1107 (Wyo. 1982) (“Malicious prosecution is not an action available against a law enforcement official”).[Footnote 6] For each charge, in any event, Robbins had some procedure to defend and make good on his position. He took advantage of some opportunities, and let others pass; although he had mixed success, he had the means to be heard. The more conventional agency action included the 1995 cancellation of the right-of-way in Robbins’s favor (originally given in return for the unrecorded easement for the Government’s benefit); the 1995 decision to reduce the SRUP from five years to one; the termination of the SRUP in 1999; and the revocation of the grazing permit that same year. Each time, the Bureau claimed that Robbins was at fault, and for each claim, administrative review was available, subject to ultimate judicial review under the APA. Robbins took no appeal from the 1995 decisions, stopped after losing an IBLA appeal of the SRUP denial, and obtained a stay from the IBLA of the Bureau’s revocation of the grazing permit. Three events elude classification. The 1995 incident in which Robbins’s horse was struck primarily involved Robbins and his neighbor, not the Bureau, and the sheriff never brought criminal charges. The videotaping of ranch guests during the 2000 drive, while no doubt thoroughly irritating and bad for business, may not have been unlawful, depending, among other things, upon the location on public or private land of the people photographed. Cf. Restatement (Second) of Torts §652B (1976) (defining tort of intrusion upon seclusion).[Footnote 7] Even if a tort was committed, it is unclear whether Robbins, rather than his guests, would be the proper plaintiff, or whether the tort should be chargeable against the Government (as distinct from employees) under the FTCA, cf. Carlson, 446 U. S., at 19–20 (holding that FTCA and Bivens remedies were “parallel, complementary causes of action” and that the availability of the former did not preempt the latter). The significance of Wallace’s 2001 attempt to pressure Smith into impounding Robbins’s cattle is likewise up in the air. The legitimacy of any impoundment that might have occurred would presumably have depended on where particular cattle were on the patchwork of private and public lands, and in any event, Smith never impounded any. In sum, Robbins has an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints. He suffered no charges of wrongdoing on his own part without an opportunity to defend himself (and, in the case of the criminal charges, to recoup the consequent expense, though a judge found his claim wanting). And final agency action, as in canceling permits, for example, was open to administrative and judicial review, as the Court of Appeals realized, 433 F. 3d, at 772. This state of the law gives Robbins no intuitively meritorious case for recognizing a new constitutional cause of action, but neither does it plainly answer no to the question whether he should have it. Like the combination of public and private land ownership around the ranch, the forums of defense and redress open to Robbins are a patchwork, an assemblage of state and federal, administrative and judicial benches applying regulations, statutes and common law rules. It would be hard to infer that Congress expected the Judiciary to stay its Bivens hand, but equally hard to extract any clear lesson that Bivens ought to spawn a new claim. Compare Bush, 462 U. S., at 388 (refusing to create a Bivens remedy when faced with “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations”); and Schweiker, 487 U. S., at 426 (“Congress chose specific forms and levels of protection for the rights of persons affected”), with Bivens, 403 U. S., at 397 (finding “no explicit congressional declaration that persons injured [in this way] may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress”). B This, then, is a case for Bivens step two, for weighing reasons for and against the creation of a new cause of action, the way common law judges have always done. See Bush, supra, at 378. Here, the competing arguments boil down to one on a side: from Robbins, the inadequacy of discrete, incident-by-incident remedies; and from the Government and its employees, the difficulty of defining limits to legitimate zeal on the public’s behalf in situations where hard bargaining is to be expected in the back-and-forth between public and private interests that the Government’s employees engage in every day. 1 As we said, when the incidents are examined one by one, Robbins’s situation does not call for creating a constitutional cause of action for want of other means of vindication, so he is unlike the plaintiffs in cases recognizing freestanding claims: Davis had no other remedy, Bivens himself was not thought to have an effective one, and in Carlson the plaintiff had none against Government officials. Davis, 442 U. S., at 245 (“For Davis, as for Bivens, ‘it is damages or nothing’ ” (quoting Bivens, supra, at 410 (Harlan, J., concurring in judgment))); Carlson, supra, at 23 (“[W]e cannot hold that Congress relegated respondent exclusively to the FTCA remedy” against the Government). But Robbins’s argument for a remedy that looks at the course of dealing as a whole, not simply as so many individual incidents, has the force of the metaphor Robbins invokes, “death by a thousand cuts.” Brief for Respondent 40. It is one thing to be threatened with the loss of grazing rights, or to be prosecuted, or to have one’s lodge broken into, but something else to be subjected to this in combination over a period of six years, by a series of public officials bent on making life difficult. Agency appeals, lawsuits, and criminal defense take money, and endless battling depletes the spirit along with the purse. The whole here is greater than the sum of its parts. 2 On the other side of the ledger there is a difficulty in defining a workable cause of action. Robbins describes the wrong here as retaliation for standing on his right as a property owner to keep the Government out (by refusing a free replacement for the right-of-way it had lost), and the mention of retaliation brings with it a tailwind of support from our longstanding recognition that the Government may not retaliate for exercising First Amendment speech rights, see Rankin v. McPherson, 483 U. S. 378 (1987), or certain others of constitutional rank, see, e.g., Lefkowitz v. Turley, 414 U. S. 70 (1973) (Fifth Amendment privilege against self-incrimination); United States v. Jackson, 390 U. S. 570 (1968) (Sixth Amendment right to trial by jury). But on closer look, the claim against the Bureau’s employees fails to fit the prior retaliation cases. Those cases turn on an allegation of impermissible purpose and motivation; an employee who spoke out on matters of public concern and then was fired, for example, would need to “prove that the conduct at issue was constitutionally protected, and that it was a substantial or motivating factor in the termination.” Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 675 (1996). In its defense, the Government may respond that the firing had nothing to do with the protected speech, or that “it would have taken the same action even in the absence of the protected conduct.” Ibid. In short, the outcome turns on “what for” questions: what was the Government’s purpose in firing him and would he have been fired anyway? Questions like these have definite answers, and we have established methods for identifying the presence of an illicit reason (in competition with others), not only in retaliation cases but on claims of discrimination based on race or other characteristics. See McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). But a Bivens case by Robbins could not be resolved merely by answering a “what for” question or two. All agree that the Bureau’s employees intended to convince Robbins to grant an easement.[Footnote 8] But unlike punishing someone for speaking out against the Government, trying to induce someone to grant an easement for public use is a perfectly legitimate purpose: as a landowner, the Government may have, and in this instance does have, a valid interest in getting access to neighboring lands. The “what for” question thus has a ready answer in terms of lawful conduct. Robbins’s challenge, therefore, is not to the object the Government seeks to achieve, and for the most part his argument is not that the means the Government used were necessarily illegitimate; rather, he says that defendants simply demanded too much and went too far. But as soon as Robbins’s claim is framed this way, the line-drawing difficulties it creates are immediately apparent. A “too much” kind of liability standard (if standard at all) can never be as reliable a guide to conduct and to any subsequent liability as a “what for” standard, and that reason counts against recognizing freestanding liability in a case like this. The impossibility of fitting Robbins’s claim into the simple “what for” framework is demonstrated, repeatedly, by recalling the various actions he complains about. Most of them, such as strictly enforcing rules against trespass or conditions on grazing permits, are legitimate tactics designed to improve the Government’s negotiating position. Just as a private landowner, when frustrated at a neighbor’s stubbornness in refusing an easement, may press charges of trespass every time a cow wanders across the property line or call the authorities to report every land-use violation, the Government too may stand firm on its rights and use its power to protect public property interests. Though Robbins protests that the Government was trying to extract the easement for free instead of negotiating, that line is slippery even in this case; the Government was not offering to buy the easement, but it did have valuable things to offer in exchange, like continued permission for Robbins to use Government land on favorable terms (at least to the degree that the terms of a permit were subject to discretion).[Footnote 9] It is true that the Government is no ordinary landowner, with its immense economic power, its role as trustee for the public, its right to cater to particular segments of the public (like the recreational users who would take advantage of the right-of-way to get to remote tracts), and its wide discretion to bring enforcement actions. But in many ways, the Government deals with its neighbors as one owner among the rest (albeit a powerful one). Each may seek benefits from the others, and each may refuse to deal with the others by insisting on valuable consideration for anything in return. And as a potential contracting party, each neighbor is entitled to drive a hard bargain, as even Robbins acknowledges, see Tr. of Oral Arg. 31–32. That, after all, is what Robbins did by flatly refusing to regrant the easement without further recompense, and that is what the defendant employees did on behalf of the Government. So long as they had authority to withhold or withdraw permission to use Government land and to enforce the trespass and land-use rules (as the IBLA confirmed that they did have at least most of the time), they were within their rights to make it plain that Robbins’s willingness to give the easement would determine how complaisant they would be about his trespasses on public land, when they had discretion to enforce the law to the letter.[Footnote 10] Robbins does make a few allegations, like the unauthorized survey and the unlawful entry into the lodge, that charge defendants with illegal action plainly going beyond hard bargaining. If those were the only coercive acts charged, Robbins could avoid the “too much” problem by fairly describing the Government behavior alleged as illegality in attempting to obtain a property interest for nothing, but that is not a fair summary of the body of allegations before us, according to which defendants’ improper exercise of the Government’s “regulatory powers” is essential to the claim. Brief for Respondent 21. (Of course, even in that simpler case, the tort or torts by Government employees would be so clearly actionable under the general law that it would furnish only the weakest argument for recognizing a generally available constitutional tort.) Rather, the bulk of Robbins’s charges go to actions that, on their own, fall within the Government’s enforcement power. It would not answer the concerns just expressed to change conceptual gears and consider the more abstract concept of liability for retaliatory or undue pressure on a property owner for standing firm on property rights; looking at the claim that way would not eliminate the problem of degree, and it would raise a further reason to balk at recognizing a Bivens claim. For at this high level of generality, a Bivens action to redress retaliation against those who resist Government impositions on their property rights would invite claims in every sphere of legitimate governmental action affecting property interests, from negotiating tax claim settlements to enforcing Occupational Safety and Health Administration regulations. Exercising any governmental authority affecting the value or enjoyment of property interests would fall within the Bivens regime, and across this enormous swath of potential litigation would hover the difficulty of devising a “too much” standard that could guide an employee’s conduct and a judicial factfinder’s conclusion.[Footnote 11] The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease. C In sum, defendants were acting in the name of the Bureau, which had the authority to grant (and had given) Robbins some use of public lands under its control and wanted a right-of-way in return. Defendants bargained hard by capitalizing on their discretionary authority and Robbins’s violations of various permit terms, though truculence was apparent on both sides. One of the defendants, at least, clearly crossed the line into impermissible conduct in breaking into Robbins’s lodge, although it is not clear from the record that any other action by defendants was more serious than garden-variety trespass, and the Government has successfully defended every decision to eliminate Robbins’s permission to use public lands in the ways he had previously enjoyed. Robbins had ready at hand a wide variety of administrative and judicial remedies to redress his injuries. The proposal, nonetheless, to create a new Bivens remedy to redress such injuries collectively on a theory of retaliation for exercising his property right to exclude, or on a general theory of unjustifiably burdening his rights as a property owner, raises a serious difficulty of devising a workable cause of action. A judicial standard to identify illegitimate pressure going beyond legitimately hard bargaining would be endlessly knotty to work out, and a general provision for tortlike liability when Government employees are unduly zealous in pressing a governmental interest affecting property would invite an onslaught of Bivens actions. We think accordingly that any damages remedy for actions by Government employees who push too hard for the Government’s benefit may come better, if at all, through legislation. “Congress is in a far better position than a court to evaluate the impact of a new species of litigation” against those who act on the public’s behalf. Bush, 462 U. S., at 389. And Congress can tailor any remedy to the problem perceived, thus lessening the risk of raising a tide of suits threatening legitimate initiative on the part of the Government’s employees. Ibid. (“[Congress] may inform itself through factfinding procedures such as hearings that are not available to the courts”); cf. Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982) (recognizing “the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties” (internal quotation marks and brackets omitted)). III Robbins’s other claim is under RICO, which gives civil remedies to “[a]ny person injured in his business or property by reason of a violation of [18 U. S. C. §1962].” 18 U. S. C. §1964(c). Section 1962(c) makes it a crime for “any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” RICO defines “racketeering activity” to include “any act which is indictable under” the Hobbs Act as well as “any act or threat involving … extortion … , which is chargeable under State law and punishable by imprisonment for more than one year.” §§1961(1)(A)–(B) (2000 ed., Supp. IV). The Hobbs Act, finally, criminalizes interference with interstate commerce by extortion, along with attempts or conspiracies, §1951(a), extortion being defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right,” §1951(b)(2). Robbins charges defendants with violating the Hobbs Act by wrongfully trying to get the easement under color of official right, to which defendants reply with a call to dismiss the RICO claim for two independent reasons: the Hobbs Act does not apply when the National Government is the intended beneficiary of the allegedly extortionate acts; and a valid claim of entitlement to the disputed property is a complete defense against extortion. Because we agree with the first contention, we do not reach the second. The Hobbs Act does not speak explicitly to efforts to obtain property for the Government rather than a private party, and that leaves defendants’ contention to turn on the common law conception of “extortion,” which we presume Congress meant to incorporate when it passed the Hobbs Act in 1946. See Scheidler v. National Organization for Women, Inc., 537 U. S. 393, 402 (2003) (construing the term “extortion” in the Hobbs Act by reference to its common law meaning); Evans v. United States, 504 U. S. 255, 259 (1992) (same); see also Morissette v. United States, 342 U. S. 246, 263 (1952) (“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken”). “At common law, extortion was a property offense committed by a public official who took any money or thing of value that was not due to him under the pretense that he was entitled to such property by virtue of his office.” Scheidler, supra, at 402 (quoting 4 W. Blackstone, Commentaries on the Laws of England 141 (1769), and citing 3 R. Anderson, Wharton’s Criminal Law and Procedure §1393, pp. 790–791 (1957); internal quotation marks omitted). In short, “[e]xtortion by the public official was the rough equivalent of what we would now describe as ‘taking a bribe.’ ” Evans, supra, at 260. Thus, while Robbins is certainly correct that public officials were not immune from charges of extortion at common law, see Brief for Respondent 43, the crime of extortion focused on the harm of public corruption, by the sale of public favors for private gain, not on the harm caused by overzealous efforts to obtain property on behalf of the Government.[Footnote 12] The importance of the line between public and private beneficiaries for common law and Hobbs Act extortion is confirmed by our own case law, which is completely barren of an example of extortion under color of official right undertaken for the sole benefit of the Government. See, e.g., McCormick v. United States, 500 U. S. 257, 273 (1991) (discussing circumstances in which public official’s receipt of campaign contributions constitutes extortion under color of official right); Evans, supra, at 257 (Hobbs Act prosecution for extortion under color of official right, where public official accepted cash in exchange for favorable votes on a rezoning application); United States v. Gillock, 445 U. S. 360, 362 (1980) (Hobbs Act prosecution for extortion under color of official right, where state senator accepted money in exchange for blocking a defendant’s extradition and agreeing to introduce legislation); cf. United States v. Deaver, 14 F. 595, 597 (WDNC 1882) (under the “technical meaning [of extortion] in the common law, … [t]he officer must unlawfully and corruptly receive such money or article of value for his own benefit or advantage”). More tellingly even, Robbins has cited no decision by any court, much less this one, from the entire 60-year period of the Hobbs Act that found extortion in efforts of Government employees to get property for the exclusive benefit of the Government. Of course, there is usually a case somewhere that provides comfort for just about any claim. Robbins musters two for his understanding of extortion under color of official right, neither of which, however, addressed the beneficiary question with any care: People v. Whaley, 6 Cow. 661 (N. Y. 1827), and Willett v. Devoy, 170 App. Div. 203, 155 N. Y. S. 920 (1915). Whaley was about a charge of extortion against a justice of the peace who wrongfully ordered a litigant to pay compensation to the other party as well as a small administrative fee to the court. Because the case involved illegally obtaining property for the benefit of a private third party, it does not stand for the proposition that an act for the benefit of the Government alone can be extortion. The second case, Willett, again from New York, construed a provision of the State’s Public Officers Law. That statute addressed the problem of overcharging by public officers, see Birdseye’s Consol. Laws of N. Y. Ann. §67, p. 4640 (1909), and the court’s opinion on it said that common law extortion did not draw any distinction “on the ground that the official keeps the fee himself,” 170 App. Div., at 204, 155 N. Y. S., at 921. But a single, two-page opinion from a state intermediate appellate court issued in 1915 is not much indication that the Hobbs Act was adopted in 1946 subject to the understanding that common law extortion was spacious enough to cover the case Robbins states. There is a reason he is plumbing obscurity. Robbins points to what we said in United States v. Green, 350 U. S. 415, 420 (1956), that “extortion as defined in the [Hobbs Act] in no way depends upon having a direct benefit conferred on the person who obtains the property.” He infers that Congress could not have meant to prohibit extortionate acts in the interest of private entities like unions, but ignore them when the intended beneficiary is the Government. See Brief for Respondent 47–48. But Congress could very well have meant just that; drawing a line between private and public beneficiaries prevents suits (not just recoveries) against public officers whose jobs are to obtain property owed to the Government. So, without some other indication from Congress, it is not reasonable to assume that the Hobbs Act (let alone RICO) was intended to expose all federal employees, whether in the Bureau of Land Management, the Internal Revenue Service, the Office of the Comptroller of the Currency (OCC), or any other agency, to extortion charges whenever they stretch in trying to enforce Government property claims. See Sinclair v. Hawke, 314 F. 3d 934, 944 (CA8 2003) (OCC employees “do not become racketeers by acting like aggressive regulators”). As we just suggested, Robbins does not face up to the real problem when he says that requiring proof of a wrongful intent to extort would shield well-intentioned Government employees from liability. It is not just final judgments, but the fear of criminal charges or civil claims for treble damages that could well take the starch out of regulators who are supposed to bargain and press demands vigorously on behalf of the Government and the public. This is the reason we would want to see some text in the Hobbs Act before we could say that Congress meant to go beyond the common law preoccupation with official corruption, to embrace the expansive notion of extortion Robbins urges on us. He falls back to the argument that defendants violated Wyoming’s blackmail statute, see Wyo. Stat. Ann. §6–2–402 (1977–2005),[Footnote 13] which he says is a separate predicate offense for purposes of RICO liability. But even assuming that defendants’ conduct would be “chargeable under State law and punishable by imprisonment for more than one year,” 18 U. S. C. §1961(1)(A), it cannot qualify as a predicate offense for a RICO suit unless it is “capable of being generically classified as extortionate,” Scheidler, 537 U. S., at 409, 410; accord, United States v. Nardello, 393 U. S. 286, 296 (1969). For the reasons just given, the conduct alleged does not fit the traditional definition of extortion, so Robbins’s RICO claim does not survive on a theory of state-law derivation. * * * Because neither Bivens nor RICO gives Robbins a cause of action, there is no reason to enquire further into the merits of his claim or the asserted defense of qualified immunity. The judgment of the Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Vessels was named as a defendant when the complaint was filed, but he has since died. Footnote 2 Because this case arises on interlocutory appeal from denial of defendants’ motion for summary judgment, we recite the facts in the light most favorable to Robbins. Footnote 3 According to Robbins, Bureau officials neglected to mention his right to seek a stay of the Bureau’s adverse action pending the IBLA’s resolution of his appeal. See 43 CFR §4.21 (2006). Such a stay, if granted, would have permitted Robbins to continue to operate under the 5-year SRUP. Footnote 4 We recognized just last Term that the definition of an element of the asserted cause of action was “directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal.” Hartman v. Moore, 547 U. S. 250, 257, n. 5 (2006). Because the same reasoning applies to the recognition of the entire cause of action, the Court of Appeals had jurisdiction over this issue, as do we. Footnote 5 There was some uncertainty, if not inconsistency, about the willingness of the IBLA to entertain the sorts of claims Robbins advances here. Compare In re Robbins, 146 I. B. L. A. 213, 219 (1998) (rejecting a claim of “ ‘blackmail’ ” on the merits), with Robbins v. Bureau of Land Management, 170 I. B. L. A. 219, 226 (2006) (holding that “the trespass decision must be upheld regardless of BLM’s motive in issuing the decision”). In any event, he could have advanced the claims in federal court whether or not the IBLA was willing to listen to them. Cf. In re Robbins, 167 I. B. L. A. 239, 241 (2005) (noting that Robbins “concede[d] that these assertions [of equal protection violations and harassment] are properly cognizable by a court and he raise[d] them only to preserve them as part of the record”). Footnote 6 Robbins brought a Fourth Amendment claim for malicious prosecution in this litigation, but the District Court dismissed it, Robbins v. Bureau of Land Management, 252 F. Supp. 2d 1286, 1295–1298 (Wyo. 2003), and Robbins has pursued it no further. Footnote 7 We are aware of no Wyoming case considering this tort. Footnote 8 This is the “simple” question Robbins presents for review: “[C]an government officials avoid the Fifth Amendment’s prohibition against taking property without just compensation by using their regulatory powers to harass, punish, and coerce a private citizen into giving the Government his property without payment?” Brief for Respondent 21. Footnote 9 In light of Justice Ginsburg’s emphasis on the extent and duration of the harm suffered by Robbins, we do not read her opinion to suggest that any single adverse action taken by the Government in response to a valid exercise of property rights would give rise to a retaliation claim. It thus appears that even if a “what for” question could be imported into this case, Robbins could not obtain relief without also satisfying an unspecified, and unworkable, “too much” standard. Footnote 10 Justice Ginsburg says we mistakenly fail to see that Robbins’s retaliation claim presents only a “what for” question: did defendants take the various actions against Robbins in retaliation for refusing to grant the desired right of way gratis (or simply out of malice prompted by Robbins’s refusal and their own embarrassment after forgetting to record the Nelson grant)? But seeing the case as raising only a traditional “what for” question gives short shrift to the Government’s right to bargain hard in a continuing contest. In the standard retaliation case recognized in our precedent, the plaintiff has performed some discrete act in the past, typically saying something that irritates the defendant official; the question is whether the official’s later action against the plaintiff was taken for a legitimate purpose (firing to rid the workforce of a substandard performer, for example) or for the purpose of punishing for the exercise of a constitutional right (that is, retaliation, probably motivated by spite). The plaintiff’s action is over and done with, and the only question is the defendant’s purpose, which may be maliciously motivated. In this case, however, the past act or acts (refusing the right-of-way without compensation) are simply particular steps in an ongoing refusal to grant requests for a right-of-way. The purpose of the continuing requests is lawful (the Government still could use the right-of-way) and there are actions the Government may lawfully take to induce or coerce Robbins to end his refusal (presumably like canceling the non-permanent reciprocal right-of-way originally given to Nelson). The action claimed to be retaliatory may gratify malice in the heart of the official who takes it, but the official act remains an instance of hard bargaining intended to induce the plaintiff to come to legitimate terms. We do not understand Robbins to contend that malice alone, as distinguished from malice combined with the desire to acquire an easement, caused defendants to act the way they did. See Brief for Respondent 21 (accusing defendants of “using their regulatory powers to harass, punish, and coerce a private citizen into giving the Government his property without payment”); but cf. post, at 12, n. 3 (Ginsburg, J., concurring in part and dissenting in part) (“ ‘Their cause, if they had one, is nothing to them now; They hate for hate’s sake’ ” (quoting There Will Be No Peace, reprinted in W. H. Auden: Collected Poems 615 (2007) (E. Mendelson ed.))). Thus, we are not dealing with one discrete act by a plaintiff and one discrete (possibly retaliatory) act by a defendant, the purpose of which is in question. Instead we are confronting a continuing process in which each side has a legitimate purpose in taking action contrary to the other’s interest. “Retaliation” cannot be classed as a basis of liability here, then, except on one or the other of two assumptions. The first is that the antagonistic acts by the officials extend beyond the scope of acceptable means for accomplishing the legitimate purpose; the acts go beyond hard bargaining on behalf of the Government (whatever spite may lurk in the defendant’s heart). They are “too much.” The second assumption is that the presence of malice or spite in an official’s heart renders any action unconstitutionally retaliatory, even if it would otherwise have been done in the name of legitimate hard bargaining. The motive-is-all test is not the law of our retaliation precedent. If a spiteful heart rendered any official efforts actionable as unconstitutional retaliation, our retaliation discharge cases would have asked not only whether the plaintiff was fired for cause (and would have been fired for cause anyway), but whether the official who discharged the plaintiff tainted any legitimate purpose with spitefulness in firing this particular, outspoken critic. But we have taken no such position; to the contrary, we have held that proof that the action was independently justified on grounds other than the improper one defeats the claim. See Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977). Any other approach would have frustrated an employer’s legitimate interest in securing a competent workforce (comparable to the Government’s interest as a landowner here), and would have introduced the complication of proving motive even in cases in which the action taken was plainly legitimate. Since Justice Ginsburg disclaims the second alternative, post at 13, n. 6, the acts of spite and ill-will that she emphasizes will necessarily count in a “too much” calculation. Footnote 11 Justice Ginsburg points out that apprehension of many lawsuits is not a good reason to refrain from creating a Bivens action. Post, at 10–11, 15. But there is a world of difference between a popular Bivens remedy for a well-defined violation, on the one hand, and (on the other) litigation invited because the elements of a claim are so unclear that no one can tell in advance what claim might qualify or what might not. We ground our judgment on the elusiveness of a limiting principle for Robbins’s claim, not on the potential popularity of a claim that could be well defined. Footnote 12 Although the legislative history of the Hobbs Act is generally “sparse and unilluminating with respect to the offense of extortion,” Evans, 504 U. S., at 264, we know that Congress patterned the Act after two sources of law: “the Penal Code of New York and the Field Code, a 19th-century model penal code,” Scheidler, 537 U. S., at 403. In borrowing from these sources, the Hobbs Act expanded the scope of common law extortion to include private perpetrators while retaining the core idea of extortion as a species of corruption, akin to bribery. But Robbins provides no basis for believing that Congress thought of broadening the definition of extortion under color of official right beyond its common law meaning. Footnote 13 Section 6–2–402 provides: “(a) A person commits blackmail if, with the intent to obtain property of another or to compel action or inaction by any person against his will, the person: . . . . . “(ii) Accuses or threatens to accuse a person of a crime or immoral conduct which would tend to degrade or disgrace the person or subject him to the ridicule or contempt of society.”
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550.US.516
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Respondent school district receives federal funds under the Individuals with Disabilities Education Act (Act or IDEA), so it must provide children such as petitioner Winkelmans’ son Jacob a “free appropriate public education,” 20 U. S. C. §1400(d)(1)(A), in accordance with an individualized education program (IEP) that the parents, school officials, and others develop as members of the student’s IEP Team. Regarding Jacob’s IEP as deficient, the Winkelmans unsuccessfully appealed through IDEA’s administrative review process. Proceeding without counsel, they then filed a federal-court complaint on their own behalf and on Jacob’s behalf. The District Court granted respondent judgment on the pleadings. The Sixth Circuit entered an order dismissing the Winkelmans’ subsequent appeal unless they obtained an attorney, citing Circuit precedent holding that because the right to a free appropriate public education belongs only to the child, and IDEA does not abrogate the common-law rule prohibiting nonlawyer parents from representing minor children, IDEA does not allow nonlawyer parents to proceed pro se in federal court. Held: 1. IDEA grants parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child. Pp. 4–17. (a) IDEA’s text resolves the question whether parents or only children have rights under the Act. Proper interpretation requires considering the entire statutory scheme. IDEA’s goals include “ensur[ing] that all children with disabilities have available to them a free appropriate public education” and “that the rights of children with disabilities and parents of such children are protected,” 20 U. S. C. §§1400(d)(1)(A)–(B), and many of its terms mandate or otherwise describe parental involvement. Parents play “a significant role,” Schaffer v. Weast, 546 U. S. 49, 53, in the development of each child’s IEP, see §§1412(a)(4), 1414(d). They are IEP team members, §1414(d)(1)(B), and their “concerns” “for enhancing [their child’s] education” must be considered by the team, §1414(d)(3)(A)(ii). A State must, moreover, give “any party” who objects to the adequacy of the education provided, the IEP’s construction, or related matter the opportunity “to present a complaint … ,” §1415(b)(6), and engage in an administrative review process that culminates in an “impartial due process hearing,” §1415(f)(1)(A), before a hearing officer. “Any party aggrieved by the [hearing officer’s] findings and decision … [has] the right to bring a civil action with respect to the complaint.” §1415(i)(2)(A). A court or hearing officer may require a state agency “to reimburse the parents … for the cost of [private school] enrollment if … the agency had not made a free appropriate public education available to the child.” §1412(a)(10)(C)(ii). IDEA also governs when and to what extent a court may award attorney’s fees, see §1415(i)(3)(B), including an award “to a prevailing party who is the parent of a child with a disability,” §1415(i)(3)(B)(i)(I). Pp. 5–9. (b) These various provisions accord parents independent, enforceable rights. Parents have enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert those rights in federal court at the adjudication stage. Respondent argues that parental involvement is contemplated only to the extent parents represent their child’s interests, but this view is foreclosed by the Act’s provisions. The grammatical structure of IDEA’s purpose of protecting “the rights of children with disabilities and parents of such children,” §1400(d)(1)(B), would make no sense unless “rights” refers to the parents’ rights as well as the child’s. Other provisions confirm this view. See, e.g., §1415(a). Even if this Court were inclined to ignore the Act’s plain text and adopt respondent’s countertextual reading, the Court disagrees that sole purpose driving IDEA’s involvement of parents is to facilitate vindication of a child’s rights. It is not novel for parents to have a recognized legal interest in their child’s education and upbringing. The Act’s provisions also contradict the variation on respondent’s argument that parents can be “parties aggrieved” for aspects of the hearing officer’s findings and decision relating to certain procedures and reimbursements, but not “parties aggrieved” with regard to any challenge not implicating those limited concerns. The IEP proceedings entitle parents to participate not only in the implementation of IDEA’s procedures but also in the substantive formulation of their child’s educational program. The Act also allows expansive challenge by parents of “any matter” related to the proceedings and requires that administrative resolution be based on whether the child “received a free appropriate public education,” §§1415(f)(3(E), with judicial review to follow. The text and structure of IDEA create in parents an independent stake not only in the procedures and costs implicated by the process but also in the substantive decision to be made. Incongruous results would follow, moreover, were the Court to accept the proposition that parents’ IDEA rights are limited to certain nonsubstantive matters. It is difficult to disentangle the Act’s procedural and reimbursement-related rights from its substantive ones, and attempting to do so would impose upon parties a confusing and onerous legal regime, one worsened by the absence of any express guidance in IDEA concerning how a court might differentiate between these matters. This bifurcated regime would also leave some parents without any legal remedy. Pp. 9–16. (c) Respondent misplaces its reliance on Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. ___, when it contends that because IDEA was passed pursuant to the Spending Clause, it must provide clear notice before it can be interpreted to provide independent rights to parents. Arlington held that IDEA had not furnished clear notice before requiring States to reimburse experts’ fees to prevailing parties in IDEA actions. However, this case does not invoke Arlington’s rule, for the determination that IDEA gives parents independent, enforceable rights does not impose any substantive condition or obligation on States that they would not otherwise be required by law to observe. The basic measure of monetary recovery is not expanded by recognizing that some rights repose in both the parent and the child. Increased costs borne by States defending against suits brought by nonlawyers do not suffice to invoke Spending Clause concerns, particularly in light of provisions in IDEA that empower courts to award attorney’s fees to prevailing educational agencies if a parent files an action for an “improper purpose,” §1415(i)(3)(B)(i)(III). Pp. 16–17. 2. The Sixth Circuit erred in dismissing the Winkelmans’ appeal for lack of counsel. Because parents enjoy rights under IDEA, they are entitled to prosecute IDEA claims on their own behalf. In light of this holding, the Court need not reach petitioners’ argument concerning whether IDEA entitles parents to litigate their child’s claims pro se. Pp. 17–18. Reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined.
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Some four years ago, Mr. and Mrs. Winkelman, parents of five children, became involved in lengthy administrative and legal proceedings. They had sought review related to concerns they had over whether their youngest child, 6-year-old Jacob, would progress well at Pleasant Valley Elementary School, which is part of the Parma City School District in Parma, Ohio. Jacob has autism spectrum disorder and is covered by the Individuals with Disabilities Education Act (Act or IDEA), 84 Stat. 175, as amended, 20 U. S. C. §1400 et seq. (2000 ed. and Supp. IV). His parents worked with the school district to develop an individualized education program (IEP), as required by the Act. All concede that Jacob’s parents had the statutory right to contribute to this process and, when agreement could not be reached, to participate in administrative proceedings including what the Act refers to as an “impartial due process hearing.” §1415(f)(1)(A) (2000 ed., Supp. IV). The disagreement at the center of the current dispute concerns the procedures to be followed when parents and their child, dissatisfied with the outcome of the due process hearing, seek further review in a United States District Court. The question is whether parents, either on their own behalf or as representatives of the child, may proceed in court unrepresented by counsel though they are not trained or licensed as attorneys. Resolution of this issue requires us to examine and explain the provisions of IDEA to determine if it accords to parents rights of their own that can be vindicated in court proceedings, or alternatively, whether the Act allows them, in their status as parents, to represent their child in court proceedings. I Respondent Parma City School District, a participant in IDEA’s educational spending program, accepts federal funds for assistance in the education of children with disabilities. As a condition of receiving funds, it must comply with IDEA’s mandates. IDEA requires that the school district provide Jacob with a “free appropriate public education,” which must operate in accordance with the IEP that Jacob’s parents, along with school officials and other individuals, develop as members of Jacob’s “IEP Team.” Brief for Petitioners 3 (internal quotation marks omitted). The school district proposed an IEP for the 2003–2004 school year that would have placed Jacob at a public elementary school. Regarding this IEP as deficient under IDEA, Jacob’s nonlawyer parents availed themselves of the administrative review provided by IDEA. They filed a complaint alleging respondent had failed to provide Jacob with a free appropriate public education; they appealed the hearing officer’s rejection of the claims in this complaint to a state-level review officer; and after losing that appeal they filed, on their own behalf and on behalf of Jacob, a complaint in the United States District Court for the Northern District of Ohio. In reliance upon 20 U. S. C. §1415(i)(2) (2000 ed., Supp. IV) they challenged the administrative decision, alleging, among other matters: that Jacob had not been provided with a free appropriate public education; that his IEP was inadequate; and that the school district had failed to follow procedures mandated by IDEA. Pending the resolution of these challenges, the Winkelmans had enrolled Jacob in a private school at their own expense. They had also obtained counsel to assist them with certain aspects of the proceedings, although they filed their federal complaint, and later their appeal, without the aid of an attorney. The Winkelmans’ complaint sought reversal of the administrative decision, reimbursement for private-school expenditures and attorney’s fees already incurred, and, it appears, declaratory relief. The District Court granted respondent’s motion for judgment on the pleadings, finding it had provided Jacob with a free appropriate public education. Petitioners, proceeding without counsel, filed an appeal with the Court of Appeals for the Sixth Circuit. Relying on its recent decision in Cavanaugh v. Cardinal Local School Dist., 409 F. 3d 753 (2005), the Court of Appeals entered an order dismissing the Winkelmans’ appeal unless they obtained counsel to represent Jacob. See Order in No. 05–3886 (Nov. 4, 2005), App. A to Pet. for Cert. 1a. In Cavanaugh the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education “belongs to the child alone,” 409 F. 3d, at 757, not to both the parents and the child. It followed, the court held, that “any right on which the [parents] could proceed on their own behalf would be derivative” of the child’s right, ibid., so that parents bringing IDEA claims were not appearing on their own behalf, ibid. See also 28 U. S. C. §1654 (allowing parties to prosecute their own claims pro se). As for the parents’ alternative argument, the court held, nonlawyer parents cannot litigate IDEA claims on behalf of their child because IDEA does not abrogate the common-law rule prohibiting nonlawyer parents from representing minor children. 409 F. 3d, at 756. As the court in Cavanaugh acknowledged, its decision brought the Sixth Circuit in direct conflict with the First Circuit, which had concluded, under a theory of “statutory joint rights,” that the Act accords to parents the right to assert IDEA claims on their own behalf. See Maroni v. Pemi-Baker Regional School Dist., 346 F. 3d 247, 249, 250 (CA1 2003). Petitioners sought review in this Court. In light of the disagreement among the Courts of Appeals as to whether a nonlawyer parent of a child with a disability may prosecute IDEA actions pro se in federal court, we granted certiorari. 549 U. S. ___ (2006). Compare Cavanaugh, supra, with Maroni, supra; see also Mosely v. Board of Ed. of Chicago, 434 F. 3d 527 (CA7 2006); Collinsgru v. Palmyra Bd. of Ed., 161 F. 3d 225 (CA3 1998); Wenger v. Canastota Central School Dist., 146 F. 3d 123 (CA2 1998) (per curiam); Devine v. Indian River Cty. School Bd., 121 F. 3d 576 (CA11 1997). II Our resolution of this case turns upon the significance of IDEA’s interlocking statutory provisions. Petitioners’ primary theory is that the Act makes parents real parties in interest to IDEA actions, not “mer[e] guardians of their children’s rights.” Brief for Petitioners 16. If correct, this allows Mr. and Mrs. Winkelman back into court, for there is no question that a party may represent his or her own interests in federal court without the aid of counsel. See 28 U. S. C. §1654 (“In all courts of the United States the parties may plead and conduct their own cases personally or by counsel . . .”). Petitioners cannot cite a specific provision in IDEA mandating in direct and explicit terms that parents have the status of real parties in interest. They instead base their argument on a comprehensive reading of IDEA. Taken as a whole, they contend, the Act leads to the necessary conclusion that parents have independent, enforceable rights. Brief for Petitioners 14 (citing Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. 50, 60 (2004)). Respondent, accusing petitioners of “knit[ting] together various provisions pulled from the crevices of the statute” to support these claims, Brief for Respondent 19, reads the text of IDEA to mean that any redressable rights under the Act belong only to children, id., at 19–40. We agree that the text of IDEA resolves the question presented. We recognize, in addition, that a proper interpretation of the Act requires a consideration of the entire statutory scheme. See Dolan v. Postal Service, 546 U. S. 481, 486 (2006). Turning to the current version of IDEA, which the parties agree governs this case, we begin with an overview of the relevant statutory provisions. A The goals of IDEA include “ensur[ing] that all children with disabilities have available to them a free appropriate public education” and “ensur[ing] that the rights of children with disabilities and parents of such children are protected.” 20 U. S. C. §§1400(d)(1)(A)–(B) (2000 ed., Supp. IV). To this end, the Act includes provisions governing four areas of particular relevance to the Winkelmans’ claim: procedures to be followed when developing a child’s IEP; criteria governing the sufficiency of an education provided to a child; mechanisms for review that must be made available when there are objections to the IEP or to other aspects of IDEA proceedings; and the requirement in certain circumstances that States reimburse parents for various expenses. See generally §§1412(a)(10), 1414, 1415. Although our discussion of these four areas does not identify all the illustrative provisions, we do take particular note of certain terms that mandate or otherwise describe parental involvement. IDEA requires school districts to develop an IEP for each child with a disability, see §§1412(a)(4), 1414(d), with parents playing “a significant role” in this process, Schaffer v. Weast, 546 U. S. 49, 53 (2005). Parents serve as members of the team that develops the IEP. §1414(d)(1)(B). The “concerns” parents have “for enhancing the education of their child” must be considered by the team. §1414(d)(3)(A)(ii). IDEA accords parents additional protections that apply throughout the IEP process. See, e.g., §1414(d)(4)(A) (requiring the IEP Team to revise the IEP when appropriate to address certain information provided by the parents); §1414(e) (requiring States to “ensure that the parents of [a child with a disability] are members of any group that makes decisions on the educational placement of their child”). The statute also sets up general procedural safeguards that protect the informed involvement of parents in the development of an education for their child. See, e.g., §1415(a) (requiring States to “establish and maintain procedures … to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education”); §1415(b)(1) (mandating that States provide an opportunity for parents to examine all relevant records). See generally §§1414, 1415. A central purpose of the parental protections is to facilitate the provision of a “ ‘free appropriate public education,’ ” §1401(9), which must be made available to the child “in conformity with the [IEP],” §1401(9)(D). The Act defines a “free appropriate public education” pursuant to an IEP to be an educational instruction “specially designed . . . to meet the unique needs of a child with a disability,” §1401(29), coupled with any additional “ ‘related services’ ” that are “required to assist a child with a disability to benefit from [that instruction],” §1401(26)(A). See also §1401(9). The education must, among other things, be provided “under public supervision and direction,” “meet the standards of the State educational agency,” and “include an appropriate preschool, elementary school, or secondary school education in the State involved.” Ibid. The instruction must, in addition, be provided at “no cost to parents.” §1401(29). See generally Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176 (1982) (discussing the meaning of “free appropriate public education” as used in the statutory precursor to IDEA). When a party objects to the adequacy of the education provided, the construction of the IEP, or some related matter, IDEA provides procedural recourse: It requires that a State provide “[a]n opportunity for any party to present a complaint . . . with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” §1415(b)(6). By presenting a complaint a party is able to pursue a process of review that, as relevant, begins with a preliminary meeting “where the parents of the child discuss their complaint” and the local educational agency “is provided the opportunity to [reach a resolution].” §1415(f)(1)(B)(i)(IV). If the agency “has not resolved the complaint to the satisfaction of the parents within 30 days,” §1415(f)(1)(B)(ii), the parents may request an “impartial due process hearing,” §1415(f)(1)(A), which must be conducted either by the local educational agency or by the state educational agency, ibid., and where a hearing officer will resolve issues raised in the complaint, §1415(f)(3). IDEA sets standards the States must follow in conducting these hearings. Among other things, it indicates that the hearing officer’s decision “shall be made on substantive grounds based on a determination of whether the child received a free appropriate public education,” and that, “[i]n matters alleging a procedural violation,” the officer may find a child “did not receive a free appropriate public education” only if the violation “(I) impeded the child’s right to a free appropriate public education; “(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or “(III) caused a deprivation of educational benefits.” §§1415(f)(3)(E)(i)–(ii). If the local educational agency, rather than the state educational agency, conducts this hearing, then “any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision to the State educational agency.” §1415(g)(1). Once the state educational agency has reached its decision, an aggrieved party may commence suit in federal court: “Any party aggrieved by the findings and decision made [by the hearing officer] shall have the right to bring a civil action with respect to the complaint.” §1415(i)(2)(A); see also §1415(i)(1). IDEA, finally, provides for at least two means of cost recovery that inform our analysis. First, in certain circumstances it allows a court or hearing officer to require a state agency “to reimburse the parents [of a child with a disability] for the cost of [private school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child.” §1412(a)(10)(C)(ii). Second, it sets forth rules governing when and to what extent a court may award attorney’s fees. See §1415(i)(3)(B). Included in this section is a provision allowing an award “to a prevailing party who is the parent of a child with a disability.” §1415(i)(3)(B)(i)(I). B Petitioners construe these various provisions to accord parents independent, enforceable rights under IDEA. We agree. The parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court. The statute sets forth procedures for resolving disputes in a manner that, in the Act’s express terms, contemplates parents will be the parties bringing the administrative complaints. In addition to the provisions we have cited, we refer also to §1415(b)(8) (requiring a state educational agency to “develop a model form to assist parents in filing a complaint”); §1415(c)(2) (addressing the response an agency must provide to a “parent’s due process complaint notice”); and §1415(i)(3)(B)(i) (referring to “the parent’s complaint”). A wide range of review is available: Administrative complaints may be brought with respect to “any matter relating to . . . the provision of a free appropriate public education.” §1415(b)(6)(A). Claims raised in these complaints are then resolved at impartial due process hearings, where, again, the statute makes clear that parents will be participating as parties. See generally supra, at 7–8. See also §1415(f)(3)(C) (indicating “[a] parent or agency shall request an impartial due process hearing” within a certain period of time); §1415(e)(2)(A)(ii) (referring to “a parent’s right to a due process hearing”). The statute then grants “[a]ny party aggrieved by the findings and decision made [by the hearing officer] . . . the right to bring a civil action with respect to the complaint.” §1415(i)(2)(A). Nothing in these interlocking provisions excludes a parent who has exercised his or her own rights from statutory protection the moment the administrative proceedings end. Put another way, the Act does not sub silentio or by implication bar parents from seeking to vindicate the rights accorded to them once the time comes to file a civil action. Through its provisions for expansive review and extensive parental involvement, the statute leads to just the opposite result. Respondent, resisting this line of analysis, asks us to read these provisions as contemplating parental involvement only to the extent parents represent their child’s interests. In respondent’s view IDEA accords parents nothing more than “collateral tools related to the child’s underlying substantive rights—not freestanding or independently enforceable rights.” Brief for Respondent 25. This interpretation, though, is foreclosed by provisions of the statute. IDEA defines one of its purposes as seeking “to ensure that the rights of children with disabilities and parents of such children are protected.” §1400(d)(1)(B). The word “rights” in the quoted language refers to the rights of parents as well as the rights of the child; otherwise the grammatical structure would make no sense. Further provisions confirm this view. IDEA mandates that educational agencies establish procedures “to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education.” §1415(a). It presumes parents have rights of their own when it defines how States might provide for the transfer of the “rights accorded to parents” by IDEA, §1415(m)(1)(B), and it prohibits the raising of certain challenges “[n]otwithstanding any other individual right of action that a parent or student may maintain under [the relevant provisions of IDEA],” §§1401(10)(E), 1412(a)(14)(E). To adopt respondent’s reading of the statute would require an interpretation of these statutory provisions (and others) far too strained to be correct. Defending its countertextual reading of the statute, respondent cites a decision by a Court of Appeals concluding that the Act’s “references to parents are best understood as accommodations to the fact of the child’s incapacity.” Doe v. Board of Ed. of Baltimore Cty., 165 F. 3d 260, 263 (CA4 1998); see also Brief for Respondent 30. This, according to respondent, requires us to interpret all references to parents’ rights as referring in implicit terms to the child’s rights—which, under this view, are the only enforceable rights accorded by IDEA. Even if we were inclined to ignore the plain text of the statute in considering this theory, we disagree that the sole purpose driving IDEA’s involvement of parents is to facilitate vindication of a child’s rights. It is not a novel proposition to say that parents have a recognized legal interest in the education and upbringing of their child. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925) (acknowledging “the liberty of parents and guardians to direct the upbringing and education of children under their control”); Meyer v. Nebraska, 262 U. S. 390, 399–401 (1923). There is no necessary bar or obstacle in the law, then, to finding an intention by Congress to grant parents a stake in the entitlements created by IDEA. Without question a parent of a child with a disability has a particular and personal interest in fulfilling “our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” §1400(c)(1). We therefore find no reason to read into the plain language of the statute an implicit rejection of the notion that Congress would accord parents independent, enforceable rights concerning the education of their children. We instead interpret the statute’s references to parents’ rights to mean what they say: that IDEA includes provisions conveying rights to parents as well as to children. A variation on respondent’s argument has persuaded some Courts of Appeals. The argument is that while a parent can be a “party aggrieved” for aspects of the hearing officer’s findings and decision, he or she cannot be a “party aggrieved” with respect to all IDEA-based challenges. Under this view the causes of action available to a parent might relate, for example, to various procedural mandates, see, e.g., Collinsgru, 161 F. 3d, at 233, and reimbursement demands, see, e.g., §1412(a)(10)(C)(ii). The argument supporting this conclusion proceeds as follows: Because a “party aggrieved” is, by definition, entitled to a remedy, and parents are, under IDEA, only entitled to certain procedures and reimbursements as remedies, a parent cannot be a “party aggrieved” with regard to any claim not implicating these limited matters. This argument is contradicted by the statutory provisions we have recited. True, there are provisions in IDEA stating parents are entitled to certain procedural protections and reimbursements; but the statute prevents us from placing too much weight on the implications to be drawn when other entitlements are accorded in less clear language. We find little support for the inference that parents are excluded by implication whenever a child is mentioned, and vice versa. Compare, e.g., §1411(e)(3)(E) (barring States from using certain funds for costs associated with actions “brought on behalf of a child” but failing to acknowledge that actions might also be brought on behalf of a parent) with §1415(i)(3)(B)(i) (allowing recovery of attorney’s fees to a “prevailing party who is the parent of a child with a disability” but failing to acknowledge that a child might also be a prevailing party). Without more, then, the language in IDEA confirming that parents enjoy particular procedural and reimbursement-related rights does not resolve whether they are also entitled to enforce IDEA’s other mandates, including the one most fundamental to the Act: the provision of a free appropriate public education to a child with a disability. We consider the statutory structure. The IEP proceedings entitle parents to participate not only in the implementation of IDEA’s procedures but also in the substantive formulation of their child’s educational program. Among other things, IDEA requires the IEP Team, which includes the parents as members, to take into account any “concerns” parents have “for enhancing the education of their child” when it formulates the IEP. §1414(d)(3)(A)(ii). The IEP, in turn, sets the boundaries of the central entitlement provided by IDEA: It defines a “ ‘free appropriate public education’ ” for that parent’s child. §1401(9). The statute also empowers parents to bring challenges based on a broad range of issues. The parent may seek a hearing on “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” §1415(b)(6)(A). To resolve these challenges a hearing officer must make a decision based on whether the child “received a free appropriate public education.” §1415(f)(3)(E). When this hearing has been conducted by a local educational agency rather than a state educational agency, “any party aggrieved by the findings and decision rendered in such a hearing may appeal such findings and decision” to the state educational agency. §1415(g)(1). Judicial review follows, authorized by a broadly worded provision phrased in the same terms used to describe the prior stage of review: “[a]ny party aggrieved” may bring “a civil action.” §1415(i)(2)(A). These provisions confirm that IDEA, through its text and structure, creates in parents an independent stake not only in the procedures and costs implicated by this process but also in the substantive decisions to be made. We therefore conclude that IDEA does not differentiate, through isolated references to various procedures and remedies, between the rights accorded to children and the rights accorded to parents. As a consequence, a parent may be a “party aggrieved” for purposes of §1415(i)(2) with regard to “any matter” implicating these rights. See §1415(b)(6)(A). The status of parents as parties is not limited to matters that relate to procedure and cost recovery. To find otherwise would be inconsistent with the collaborative framework and expansive system of review established by the Act. Cf. Cedar Rapids Community School Dist. v. Garret F., 526 U. S. 66, 73 (1999) (look- ing to IDEA’s “overall statutory scheme” to interpret its provisions). Our conclusion is confirmed by noting the incongruous results that would follow were we to accept the proposition that parents’ IDEA rights are limited to certain nonsubstantive matters. The statute’s procedural and reimbursement-related rights are intertwined with the substantive adequacy of the education provided to a child, see, e.g., §1415(f)(3)(E), see also §1412(a)(10)(C)(ii), and it is difficult to disentangle the provisions in order to conclude that some rights adhere to both parent and child while others do not. Were we nevertheless to recognize a distinction of this sort it would impose upon parties a confusing and onerous legal regime, one worsened by the absence of any express guidance in IDEA concerning how a court might in practice differentiate between these matters. It is, in addition, out of accord with the statute’s design to interpret the Act to require that parents prove the substantive inadequacy of their child’s education as a predicate for obtaining, for example, reimbursement under §1412(a)(10)(C)(ii), yet to prevent them from obtaining a judgment mandating that the school district provide their child with an educational program demonstrated to be an appropriate one. The adequacy of the educational program is, after all, the central issue in the litigation. The provisions of IDEA do not set forth these distinctions, and we decline to infer them. The bifurcated regime suggested by the courts that have employed it, moreover, leaves some parents without a remedy. The statute requires, in express terms, that States provide a child with a free appropriate public education “at public expense,” §1401(9)(A), including specially designed instruction “at no cost to parents,” §1401(29). Parents may seek to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child. Under the countervailing view, which would make a parent’s ability to enforce IDEA dependant on certain procedural and reimbursement-related rights, a parent whose disabled child has not received a free appropriate public education would have recourse in the federal courts only under two circumstances: when the parent happens to have some claim related to the procedures employed; and when he or she is able to incur, and has in fact incurred, expenses creating a right to reimbursement. Otherwise the adequacy of the child’s education would not be regarded as relevant to any cause of action the parent might bring; and, as a result, only the child could vindicate the right accorded by IDEA to a free appropriate public education. The potential for injustice in this result is apparent. What is more, we find nothing in the statute to indicate that when Congress required States to provide adequate instruction to a child “at no cost to parents,” it intended that only some parents would be able to enforce that mandate. The statute instead takes pains to “ensure that the rights of children with disabilities and parents of such children are protected.” §1400(d)(1)(B). See, e.g., §1415(e)(2) (requiring that States implement procedures to ensure parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education); §1415(e)(2)(A)(ii) (requiring that mediation procedures not be “used to deny or delay a parent’s right to a due process hearing . . . or to deny any other rights afforded under this subchapter”); cf. §1400(c)(3) (noting IDEA’s success in “ensuring children with disabilities and the families of such children access to a free appropriate public education”). We conclude IDEA grants parents independent, enforceable rights. These rights, which are not limited to certain procedural and reimbursement-related matters, encompass the entitlement to a free appropriate public education for the parents’ child. C Respondent contends, though, that even under the reasoning we have now explained petitioners cannot prevail without overcoming a further difficulty. Citing our opinion in Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. ___ (2006), respondent argues that statutes passed pursuant to the Spending Clause, such as IDEA, must provide “ ‘clear notice’ ” before they can burden a State with some new condition, obligation, or liability. Brief for Respondent 41. Respondent contends that because IDEA is, at best, ambiguous as to whether it accords parents independent rights, it has failed to provide clear notice of this condition to the States. See id., at 40–49. Respondent’s reliance on Arlington is misplaced. In Arlington we addressed whether IDEA required States to reimburse experts’ fees to prevailing parties in IDEA actions. “[W]hen Congress attaches conditions to a State’s acceptance of federal funds,” we explained, “the conditions must be set out ‘unambiguously.’ ” 548 U. S., at ___ (slip op., at 3) (quoting Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981)). The question to be answered in Arlington, therefore, was whether IDEA “furnishes clear notice regarding the liability at issue.” 548 U. S., at ___ (slip op., at 4). We found it did not. The instant case presents a different issue, one that does not invoke the same rule. Our determination that IDEA grants to parents independent, enforceable rights does not impose any substantive condition or obligation on States they would not otherwise be required by law to observe. The basic measure of monetary recovery, moreover, is not expanded by recognizing that some rights repose in both the parent and the child. Were we considering a statute other than the one before us, the Spending Clause argument might have more force: A determination by the Court that some distinct class of people has independent, enforceable rights might result in a change to the States’ statutory obligations. But that is not the case here. Respondent argues our ruling will, as a practical matter, increase costs borne by the States as they are forced to defend against suits unconstrained by attorneys trained in the law and the rules of ethics. Effects such as these do not suffice to invoke the concerns under the Spending Clause. Furthermore, IDEA does afford relief for the States in certain cases. The Act empowers courts to award attorney’s fees to a prevailing educational agency whenever a parent has presented a “complaint or subsequent cause of action . . . for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” §1415(i)(3)(B)(i)(III). This provision allows some relief when a party has proceeded in violation of these standards. III The Court of Appeals erred when it dismissed the Winkelmans’ appeal for lack of counsel. Parents enjoy rights under IDEA; and they are, as a result, entitled to prosecute IDEA claims on their own behalf. The decision by Congress to grant parents these rights was consistent with the purpose of IDEA and fully in accord with our social and legal traditions. It is beyond dispute that the relationship between a parent and child is sufficient to support a legally cognizable interest in the education of one’s child; and, what is more, Congress has found that “the education of children with disabilities can be made more effective by . . . strengthening the role and responsibility of parents and ensuring that families of such children have meaningful opportunities to participate in the education of their children at school and at home.” §1400(c)(5). In light of our holding we need not reach petitioners’ alternative argument, which concerns whether IDEA entitles parents to litigate their child’s claims pro se. 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.
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550.US.81
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The Federal Impact Aid Program provides financial assistance to local school districts whose ability to finance public school education is adversely affected by a federal presence. The statute prohibits a State from offsetting this federal aid by reducing state aid to a local district. To avoid unreasonably interfering with a state program that seeks to equalize per-pupil expenditures, the statute contains an exception permitting a State to reduce its own local funding on account of the federal aid where the Secretary of Education finds that the state program “equalizes expenditures” among local school districts. 20 U. S. C. §7709(b)(1). The Secretary is required to use a formula that compares the local school district with the greatest per-pupil expenditures in a State to the school district with the smallest per-pupil expenditures. If the former does not exceed the latter by more than 25 percent, the state program qualifies as one that “equalizes expenditures.” In making this determination, the Secretary must, inter alia, “disregard [school districts] with per-pupil expenditures … above the 95th percentile or below the 5th percentile of such expenditures in the State.” §7709(b)(2)(B)(i). Regulations first promulgated 30 years ago provide that the Secretary will first create a list of school districts ranked in order of per-pupil expenditure; then identify the relevant percentile cutoff point on that list based on a specific (95th or 5th) percentile of student population—essentially identifying those districts whose students account for the 5 percent of the State’s total student population that lies at both the high and low ends of the spending distribution; and finally compare the highest spending and lowest spending of the remaining school districts to see whether they satisfy the statute’s requirement that the disparity between them not exceed 25 percent. Using this formula, Department of Education officials ranked New Mexico’s 89 local school districts in order of per-pupil spending for fiscal year 1998, excluding 17 schools at the top because they contained (cumulatively) less than 5 percent of the student population and an additional 6 districts at the bottom. The remaining 66 districts accounted for approximately 90 percent of the State’s student population. Because the disparity between the highest and lowest of the remaining districts was less than 25 percent, the State’s program “equalize[d] expenditures,” and the State could offset federal impact aid by reducing its aid to individual districts. Seeking further review, petitioner school districts (Zuni) claimed that the calculations were correct under the regulations, but that the regulations were inconsistent with the authorizing statute because the Department must calculate the 95th and 5th percentile cutoffs based solely on the number of school districts without considering the number of pupils in those districts. A Department Administrative Law Judge and the Secretary both rejected this challenge, and the en banc Tenth Circuit ultimately affirmed. Held: The statute permits the Secretary to identify the school districts that should be “disregard[ed]” by looking to the number of the district’s pupils as well as to the size of the district’s expenditures per pupil. Pp. 7–17. (a) The “disregard” instruction’s history and purpose indicate that the Secretary’s calculation formula is a reasonable method that carries out Congress’ likely intent in enacting the statutory provision. For one thing, that method is the kind of highly technical, specialized interstitial matter that Congress does not decide itself, but delegates to specialized agencies to decide. For another, the statute’s history strongly supports the Secretary. The present statutory language originated in draft legislation sent by the Secretary himself, which Congress adopted without comment or clarification. No one at the time—no Member of Congress, no Department of Education official, no school district or State—expressed the view that this statutory language was intended to require, or did require, the Secretary to change the Department’s system of calculation, a system that the Department and school districts across the Nation had followed for nearly 20 years. Finally, the purpose of the disregard instruction, which is evident in the language of the present statute, is to exclude statistical outliers. Viewed in terms of this purpose, the Secretary’s calculation method is reasonable, while the reasonableness of Zuni’s proposed method is more doubtful as the then Commissioner of Education explained when he considered the matter in 1976. Pp. 7–11. (b) The Secretary’s method falls within the scope of the statute’s plain language. Neither the legislative history nor the reasonableness of the Secretary’s method would be determinative if the statute’s plain language unambiguously indicated Congress’ intent to foreclose the Secretary’s interpretation. See Chevron, supra, at 842–843. That is not the case here. Section 7709(b)(2)(B)(i)’s phrase “above the 95th percentile … of … [per-pupil] expenditures” (emphasis added) limits the Secretary to calculation methods involving per-pupil expenditures. It does not tell the Secretary which of several possible methods the Department must use, nor rule out the Secretary’s present formula, which distributes districts in accordance with per-pupil expenditures, while essentially weighting each district to reflect the number of pupils it contains. This interpretation is supported by dictionary definitions of “percentile,” and by the fact that Congress, in other statutes, has clarified the matter at issue to avoid comparable ambiguity. Moreover, “[a]mbiguity is a creature not [just] of definitional possibilities but [also] of statutory context.” Brown v. Gardner, 513 U. S. 115, 118. Context here indicates that both students and school districts are of concern to the statute, and, thus, the disregard instruction can include within its scope the distribution of a ranked population consisting of pupils (or of school districts weighted by pupils), not just a ranked distribution of unweighted school districts alone. Finally, this Court is reassured by the fact that no group of statisticians, nor any individual statistician, has said directly in briefs, or indirectly through citation, that the language in question cannot be read the way it is interpreted here. Pp. 11–17. 437 F. 3d 1289, affirmed. Breyer, J., delivered the opinion of the Court, in which Stevens, Kennedy, Ginsburg, and Alito, JJ., joined. Stevens, J., filed a concurring opinion. Kennedy, J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined, and in which Souter, J., joined as to Part I. Souter, J., filed a dissenting opinion.
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A federal statute sets forth a method that the Secretary of Education is to use when determining whether a State’s public school funding program “equalizes expenditures” throughout the State. The statute instructs the Secretary to calculate the disparity in per-pupil expenditures among local school districts in the State. But, when doing so, the Secretary is to “disregard” school districts “with per-pupil expenditures … above the 95th percentile or below the 5th percentile of such expenditures … in the State.” 20 U. S. C. §7709(b)(2)(B)(i) (emphasis added). The question before us is whether the emphasized statutory language permits the Secretary to identify the school districts that should be “disregard[ed]” by looking to the number of the district’s pupils as well as to the size of the district’s expenditures per pupil. We conclude that it does. I A The federal Impact Aid Act, 108 Stat. 3749, as amended, 20 U. S. C. §7701 et seq., provides financial assistance to local school districts whose ability to finance public school education is adversely affected by a federal presence. Federal aid is available to districts, for example, where a significant amount of federal land is exempt from local property taxes, or where the federal presence is responsible for an increase in school-age children (say, of armed forces personnel) whom local schools must educate. See §7701. The statute typically prohibits a State from offsetting this federal aid by reducing its own state aid to the local district. If applied without exceptions, however, this prohibition might unreasonably interfere with a state program that seeks to equalize per-pupil expenditures throughout the State, for instance, by preventing the state program from taking account of a significant source of federal funding that some local school districts receive. The statute consequently contains an exception that permits a State to compensate for federal impact aid where “the Secretary [of Education] determine[s] and certifies … that the State has in effect a program of State aid that equalizes expenditures for free public education among local [school districts] in the State.” §7709(b)(1) (2000 ed., Supp. IV) (emphasis added). The statute sets out a formula that the Secretary of Education must use to determine whether a state aid program satisfies the federal “equaliz[ation]” requirement. The formula instructs the Secretary to compare the local school district with the greatest per-pupil expenditures to the school district with the smallest per-pupil expenditures to see whether the former exceeds the latter by more than 25 percent. So long as it does not, the state aid program qualifies as a program that “equalizes expenditures.” More specifically the statute provides that “a program of state aid” qualifies, i.e., it “equalizes expenditures” among local school districts if, “in the second fiscal year preceding the fiscal year for which the determination is made, the amount of per-pupil expenditures made by [the local school district] with the highest such per-pupil expenditures … did not exceed the amount of such per-pupil expenditures made by [the local school district] with the lowest such expenditures … by more than 25 percent.” §7709(b)(2)(A) (2000 ed.). The statutory provision goes on to set forth what we shall call the “disregard” instruction. It states that, when “making” this “determination,” the “Secretary shall … disregard [school districts] with per-pupil expenditures … above the 95th percentile or below the 5th percentile of such expenditures.” §7709(b)(2)(B)(i) (emphasis added). It adds that the Secretary shall further: “take into account the extent to which [the state program reflects the special additional costs that some school districts must bear when they are] geographically isolated [or when they provide education for] particular types of students, such as children with disabilities.” §7709(b)(2)(B)(ii). B This case requires us to decide whether the Secretary’s present calculation method is consistent with the federal statute’s “disregard” instruction. The method at issue is contained in a set of regulations that the Secretary first promulgated 30 years ago. Those regulations essentially state the following: When determining whether a state aid program “equalizes expenditures” (thereby permitting the State to reduce its own local funding on account of federal impact aid), the Secretary will first create a list of school districts ranked in order of per-pupil expenditure. The Secretary will then identify the relevant percentile cutoff point on that list on the basis of a specific (95th or 5th) percentile of student population—essentially identifying those districts whose students account for the 5 percent of the State’s total student population that lies at both the high and low ends of the spending distribution. Finally the Secretary will compare the highest spending and lowest spending school districts of those that remain to see whether they satisfy the statute’s requirement that the disparity between them not exceed 25 percent. The regulations set forth this calculation method as follows: “[D]eterminations of disparity in current expenditures … per-pupil are made by— “(i) Ranking all [of the State’s school districts] on the basis of current expenditures … per pupil [in the relevant statutorily determined year]; “(ii) Identifying those [school districts] that fall at the 95th and 5th percentiles of the total number of pupils in attendance [at all the State’s school districts taken together]; and “(iii) Subtracting the lower current expenditure … per pupil figure from the higher for those [school districts] identified in paragraph (ii) and dividing the difference by the lower figure.” 34 CFR pt. 222, subpt. K, App., ¶1 (2006) (emphasis deleted). The regulations also provide an illustration of how to perform the calculation: “In State X, after ranking all [school districts] in order of the expenditures per pupil for the [statutorily determined] fiscal year in question, it is ascertained by counting the number of pupils in attendance in those [school districts] in ascending order of expenditure that the 5th percentile of student population is reached at [school district A] with a per pupil expenditure of $820, and that the 95th percentile of student population is reached at [school district B] with a per pupil expenditure of $1,000. The percentage disparity between the 95th percentile and the 5th percentile [school districts] is 22 percent ($1000$820 = $180/$820).” Ibid. Because 22 percent is less than the statutory “25 percent” requirement, the state program in the example qualifies as a program that “equalizes expenditures.” C This case concerns the Department of Education’s application of the Secretary’s regulations to New Mexico’s local district aid program in respect to fiscal year 2000. As the regulations require, Department officials listed each of New Mexico’s 89 local school districts in order of per-pupil spending for fiscal year 1998. (The calculation in New Mexico’s case was performed, as the statute allows, on the basis of per-pupil revenues, rather than per-pupil expenditures. See 20 U. S. C. §7709(b)(2)(A). See also Appendix B, infra. For ease of reference we nevertheless refer, in respect to New Mexico’s figures and throughout the opinion, only to “per-pupil expenditures.”) After ranking the districts, Department officials excluded 17 school districts at the top of the list because those districts contained (cumulatively) less than 5 percent of the student population; for the same reason, they excluded an additional 6 school districts at the bottom of the list. The remaining 66 districts accounted for approximately 90 percent of the State’s student population. Of those, the highest ranked district spent $3,259 per student; the lowest ranked district spent $2,848 per student. The difference, $411, was less than 25 percent of the lowest per-pupil figure, namely $2,848. Hence, the officials found that New Mexico’s local aid program qualifies as a program that “equalizes expenditures.” New Mexico was therefore free to offset federal impact aid to individual districts by reducing state aid to those districts. Two of New Mexico’s public school districts, Zuni Public School District and Gallup-McKinley County Public School District (whom we shall collectively call Zuni), sought further agency review of these findings. Zuni conceded that the Department’s calculations were correct in terms of the Department’s own regulations. Zuni argued, however, that the regulations themselves are inconsistent with the authorizing statute. That statute, in its view, requires the Department to calculate the 95th and 5th percentile cutoffs solely on the basis of the number of school districts (ranked by their per-pupil expenditures), without any consideration of the number of pupils in those districts. If calculated as Zuni urges, only 10 districts (accounting for less than 2 percent of all students) would have been identified as the outliers that the statute instructs the Secretary to disregard. The difference, as a result, between the highest and lowest per-pupil expenditures of the remaining districts (26.9 percent) would exceed 25 percent. Consequently, the statute would forbid New Mexico to take account of federal impact aid as it decides how to equalize school funding across the State. See N. M. Stat. Ann. §22–8–1 et seq. (2006). A Department of Education Administrative Law Judge rejected Zuni’s challenge to the regulations. The Secretary of Education did the same. Zuni sought review of the Secretary’s decision in the Court of Appeals for the Tenth Circuit. 393 F. 3d 1158 (2004). Initially, a Tenth Circuit panel affirmed the Secretary’s determination by a split vote (2 to 1). Subsequently, the full Court of Appeals vacated the panel’s decision and heard the matter en banc. The 12-member en banc court affirmed the Secretary but by an evenly divided court (6 to 6). 437 F. 3d 1289 (2006). Zuni sought certiorari. We agreed to decide the matter. II A Zuni’s strongest argument rests upon the literal language of the statute. Zuni concedes, as it must, that if the language of the statute is open or ambiguous—that is, if Congress left a “gap” for the agency to fill—then we must uphold the Secretary’s interpretation as long as it is reasonable. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842–843 (1984). See also Christensen v. Harris County, 529 U. S. 576, 589, n. (Scalia, J., concurring in part and concurring in judgment). For purposes of exposition, we depart from a normal order of discussion, namely an order that first considers Zuni’s statutory language argument. See Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002). Instead, because of the technical nature of the language in question, we shall first examine the provision’s background and basic purposes. That discussion will illuminate our subsequent analysis in Part II–B, infra. It will also reveal why Zuni concentrates its argument upon language alone. Considerations other than language provide us with unusually strong indications that Congress intended to leave the Secretary free to use the calculation method before us and that the Secretary’s chosen method is a reasonable one. For one thing, the matter at issue—i.e., the calculation method for determining whether a state aid program “equalizes expenditures”—is the kind of highly technical, specialized interstitial matter that Congress often does not decide itself, but delegates to specialized agencies to decide. See United States v. Mead Corp., 533 U. S. 218, 234 (2001); cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231, (1994); Christensen, supra, at 589, n. (opinion of Scalia, J.). For another thing, the history of the statute strongly supports the Secretary. Congress first enacted an impact aid “equalization” exception in 1974. The exception originally provided that the “ter[m] … ‘equaliz[ing] expenditures’ … shall be defined by the [Secretary].” 20 U. S. C. §240(d)(2)(B) (1970 ed., Supp. IV). Soon thereafter, in 1976, the Secretary promulgated the regulation here at issue defining the term “equalizing expenditures” in the manner now before us. See Part I–B, supra. As far as we can tell, no Member of Congress has ever criticized the method the 1976 regulation sets forth nor suggested at any time that it be revised or reconsidered. The present statutory language originated in draft legislation that the Secretary himself sent to Congress in 1994. With one minor change (irrelevant to the present calculation controversy), Congress adopted that language without comment or clarification. No one at the time—no Member of Congress, no Department of Education official, no school district or State—expressed the view that this statutory language (which, after all, was supplied by the Secretary) was intended to require, or did require, the Secretary to change the Department’s system of calculation, a system that the Department and school districts across the Nation had followed for nearly 20 years, without (as far as we are told) any adverse effect. Finally, viewed in terms of the purpose of the statute’s disregard instruction, the Secretary’s calculation method is reasonable, while the reasonableness of a method based upon the number of districts alone (Zuni’s proposed method) is more doubtful. When the Secretary (then Commissioner) of Education considered the matter in 1976, he explained why that is so. Initially the Secretary pointed out that the “exclusion of the upper and bottom 5 percentile school districts is based upon the accepted principle of statistical evaluation that such percentiles usually represent unique or noncharacteristic situations.” 41 Fed. Reg. 26320 (1976) (emphasis added). That purpose, a purpose to exclude statistical outliers, is evident in the language of the present statute. The provision uses the technical term “percentile”; it refers to cutoff numbers (“95th” and “5th”) often associated with scientific calculations; and it directly precedes another statutory provision that tells the Secretary to account for those districts, from among the middle 5th to 95th percentile districts, that remain “noncharacteristic” in respect to geography or the presence of special students (such as disabled students). See 20 U. S. C. §§7709(b)(2)(B)(i)–(ii). The Secretary added that under the regulation’s calculation system the “percentiles” would be “determined on the basis of numbers of pupils and not on the basis of numbers of districts.” 41 Fed. Reg. 26324. He said that to base “an exclusion on numbers of districts” alone “would act to apply the disparity standard in an unfair and inconsistent manner among States.” Ibid. He then elaborated upon his concerns: “The purpose of the exclusion is to eliminate those anomalous characteristics of a distribution of expenditures. In States with a small number of large districts, an exclusion based on percentage of school districts might exclude from the measure of disparity a substantial percentage of the pupil population in those States. Conversely, in States with large numbers of small districts, such an approach might exclude only an insignificant fraction of the pupil population and would not exclude anomalous characteristics.” Ibid. To understand the Secretary’s first problem, consider an exaggerated example, say a State with 80 school districts of unequal size. Suppose 8 of the districts include urban areas and together account for 70 percent of the State’s students, while the remaining 72 districts include primarily rural areas and together account for 30 percent of the State’s students. If the State’s greatest funding disparities are among the 8 urban districts, Zuni’s calculation method (which looks only at the number of districts and ignores their size) would require the Secretary to disregard the system’s 8 largest districts (i.e., 10 percent of the number 80) even though those 8 districts (because they together contain 70 percent of the State’s pupils) are typical of, indeed characterize, the State’s public school system. It would require the Secretary instead to measure the system’s expenditure equality by looking only to noncharacteristic districts that are not representative of the system as a whole, indeed districts accounting for only 30 percent of the State’s pupils. Thus, according to Zuni’s method, the Secretary would have to certify a state aid program as one that “equalizes expenditures” even if there were gross disparities in per-pupil expenditures among urban districts accounting for 70 percent of the State’s students. By way of contrast, the Secretary’s method, by taking into account a district’s size as well as its expenditures, would avoid a calculation that would produce results so contrary to the statute’s objective. To understand the Secretary’s second problem consider this very case. New Mexico’s 89 school districts vary significantly in respect to the number of pupils each contains. Zuni’s calculation system nonetheless forbids the Secretary to discount more than 10 districts—10 percent of the total number of districts (rounded up). But these districts taken together account for only 1.8 percent of the State’s pupils. To eliminate only those districts, instead of eliminating districts that together account for 10 percent of the State’s pupils, risks resting the “disregard” calculation upon a few particularly extreme noncharacteristic districts, yet again contrary to the statute’s intent. Thus, the history and purpose of the disregard instruction indicate that the Secretary’s calculation formula is a reasonable method that carries out Congress’ likely intent in enacting the statutory provision before us. B But what of the provision’s literal language? The matter is important, for normally neither the legislative history nor the reasonableness of the Secretary’s method would be determinative if the plain language of the statute unambiguously indicated that Congress sought to foreclose the Secretary’s interpretation. And Zuni argues that the Secretary’s formula could not possibly effectuate Congress’ intent since the statute’s language literally forbids the Secretary to use such a method. Under this Court’s precedents, if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis. See Chevron, 467 U. S., at 842–843. A customs statute that imposes a tariff on “clothing” does not impose a tariff on automobiles, no matter how strong the policy arguments for treating the two kinds of goods alike. But we disagree with Zuni’s conclusion, for we believe that the Secretary’s method falls within the scope of the statute’s plain language. That language says that, when the Secretary compares (for a specified fiscal year) “the amount of per-pupil expenditures made by” (1) the highest-per-pupil-expenditure district and (2) the lowest-per-pupil-expenditure district, “the Secretary shall … disregard” local school districts “with per-pupil expenditures … above the 95th percentile or below the 5th percentile of such expenditures in the State.” 20 U. S. C. §7709(b)(2)(B)(i). The word “such” refers to “per-pupil expenditures” (or more precisely to “per-pupil expenditures” in the test year specified by the statute). The question then is whether the phrase “above the 95th percentile … of … [per pupil] expenditures” permits the Secretary to calculate percentiles by (1) ranking local districts, (2) noting the student population of each district, and (3) determining the cutoff point on the basis of districts containing 95 percent (or 5 percent) of the State’s students. Our answer is that this phrase, taken with absolute literalness, limits the Secretary to calculation methods that involve “per-pupil expenditures.” But it does not tell the Secretary which of several different possible methods the Department must use. Nor does it rule out the present formula, which distributes districts in accordance with per-pupil expenditures, while essentially weighting each district to reflect the number of pupils it contains. Because the statute uses technical language (e.g., “percentile”) and seeks a technical purpose (eliminating uncharacteristic, or outlier, districts), we have examined dictionary definitions of the term “percentile.” See 41 Fed. Reg. 26320 (Congress intended measurements based upon an “accepted principle of statistical evaluation” (emphasis added)). Those definitions make clear that “percentile” refers to a division of a distribution of some population into 100 parts. Thus, Webster’s Third New International Dictionary 1675 (1961) (Webster’s Third) defines “percentile” as “the value of the statistical variable that marks the boundary between any two consecutive intervals in a distribution of 100 intervals each containing one percent of the total population.” A standard economics dictionary gives a similar definition for “percentiles”: “The values separating hundredth parts of a distribution, arranged in order of size. The 99th percentile of the income distribution, for example, is the income level such that only one percent of the population have larger incomes.” J. Black, A Dictionary of Economics 348–349 (2d ed. 2002). A dictionary of mathematics states: “The n-th percentile is the value xn/100 such that n per cent of the population is less than or equal to xn/100.” It adds that “[t]he terms can be modified, though not always very satisfactorily, to be applicable to a discrete random variable or to a large sample ranked in ascending order.” C. Clapham & J. Nicholson, The Concise Oxford Dictionary of Mathematics 378–379 (3d ed. 2005) (emphasis deleted). The American Heritage Science Dictionary 468 (2005) explains that a percentile is “[a]ny of the 100 equal parts into which the range of the values of a set of data can be divided in order to show the distribution of those values.” And Merriam-Webster’s Medical Desk Dictionary 612 (2002) describes percentile as “a value on a scale of one hundred that indicates the percent of a distribution that is equal to or below it.” These definitions, mainstream and technical, all indicate that, in order to identify the relevant percentile cutoffs, the Secretary must construct a distribution of values. That distribution will consist of a “population” ranked according to a characteristic. That characteristic takes on a “value” for each member of the relevant population. The statute’s instruction to identify the 95th and 5th “percentile of such expenditures” makes clear that the relevant characteristic for ranking purposes is per-pupil expenditure during a particular year. But the statute does not specify precisely what population is to be “distributed” (i.e., ranked according to the population’s corresponding values for the relevant characteristic). Nor does it set forth various details as to how precisely the distribution is to be constructed (as long as it is ranked according to the specified characteristic). But why is Congress’ silence in respect to these matters significant? Are there several different populations, relevant here, that one might rank according to “per-pupil expenditures” (and thereby determine in several different ways a cutoff point such that “n percent of [that] population” falls, say below the percentile cutoff)? We are not experts in statistics, but a statistician is not needed to see what the dictionary does not say. No dictionary definition we have found suggests that there is any single logical, mathematical, or statistical link between, on the one hand, the characterizing data (used for ranking purposes) and, on the other hand, the nature of the relevant population or how that population might be weighted for purposes of determining a percentile cutoff. Here, the Secretary has distributed districts, ranked them according to per-pupil expenditure, but compared only those that account for 90 percent of the State’s pupils. Thus, the Secretary has used—as his predecessors had done for a quarter century before him—the State’s students as the relevant population for calculating the specified percentiles. Another Secretary might have distributed districts, ranked them by per-pupil expenditure, and made no reference to the number of pupils (a method that satisfies the statute’s language but threatens the problems the Secretary long ago identified, see 41 Fed. Reg. 26324; supra, at 4–5). A third Secretary might have distributed districts, ranked them by per-pupil expenditure, but compared only those that account for 90 percent of total pupil expenditures in the State. A fourth Secretary might have distributed districts, ranked them by per-pupil expenditure, but calculated the 95th and 5th percentile cutoffs using the per-pupil expenditures of all the individual schools in the State. See 41 Fed. Reg. 26324 (considering this system of calculation). A fifth Secretary might have distributed districts, ranked them by per-pupil expenditure, but accounted in his disparity calculation for the sometimes significant differences in per-pupil spending at different grade levels. See 34 CFR §222.162(b)(1) (2006) (authorizing such a system); id., pt. 222, subpt. K, App. See also Appendix B, infra. Each of these methods amounts to a different way of determining which districts fall between the 5th and 95th “percentile of per-pupil expenditures.” For purposes of that calculation, they each adopt different populations—students, districts, schools, and grade levels. Yet, linguistically speaking, one may attribute the characteristic of per-pupil expenditure to each member of any such population (though the values of that characteristic may be more or less readily available depending on the chosen population, see 41 Fed. Reg. 26324). Hence, the statute’s literal language covers any or all of these methods. That language alone does not tell us (or the Secretary of Education), however, which method to use. Justice Scalia’s claim that this interpretation “defies any semblance of normal English” depends upon its own definition of the word “per.” That word, according to the dissent, “connotes . . . a single average figure assigned to a unit the composite members of which are individual pupils.” Post, at 6 (dissenting opinion) (emphasis omitted). In fact, the word “per” simply means “[f]or each” or “for every.” Black’s Law Dictionary 1171 (8th ed. 1999); see Webster’s Third 1674. Thus, nothing in the English language forbids the Secretary from considering expenditures for each individual pupil in a district when instructed to look at a district’s “per-pupil expenditures.” The remainder of the dissent’s argument, colorful language to the side, rests upon a reading of the statutory language that ignores its basic purpose and history. We find additional evidence for our understanding of the language in the fact that Congress, in other statutes, has clarified the matter here at issue thereby avoiding comparable ambiguity. For example, in a different education-related statute, Congress refers to “the school at the 20th percentile in the State, based on enrollment, among all schools ranked by the percentage of students at the proficient level.” 20 U. S. C. §6311(b)(2)(E)(ii) (2000 ed., Supp. IV) (emphasis added). In another statute fixing charges for physicians services, Congress specified that the maximum charge “shall be the 50th percentile of the customary charges for the service (weighted by the frequency of the service) performed by nonparticipating physicians in the locality during the [prior] 12-month period.” 42 U. S. C. §1395u(j)(1)(C)(v) (2000 ed.) (emphasis added). In these statutes Congress indicated with greater specificity how a percentile should be determined by stating precisely not only which data values are of interest, but also (in the first) the population that is to be distributed and (in the second) the weightings needed to make the calculation meaningful and to avoid counterproductive results. In the statute at issue here, however, Congress used more general language (drafted by the Secretary himself), which leaves the Secretary with the authority to resolve such subsidiary matters at the administrative level. We also find support for our view of the language in the more general circumstance that statutory “[a]mbiguity is a creature not [just] of definitional possibilities but [also] of statutory context.” Brown v. Gardner, 513 U. S. 115, 118 (1994). See also FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 132–133 (2000) (“[m]eaning—or ambiguity—of certain words or phrases may only become evident when placed in context” (emphasis added)). That may be so even if statutory language is highly technical. After all, the scope of what seems a precise technical chess instruction, such as “you must place the queen next to the king,” varies with context, depending, for example, upon whether the instructor is telling a beginner how to set up the board or telling an advanced player how to checkmate an opponent. The dictionary acknowledges that, when interpreting technical statistical language, the purpose of the exercise matters, for it says that “quantile,” “percentile,” “quartile,” and “decile” are “terms [that] can be modified, though not always very satisfactorily, to be applicable to … a large sample ranked in ascending order.” Oxford Dictionary of Mathematics, at 379. Thus, an instruction to “identify schools with average scholastic aptitude test scores below the 5th percentile of such scores” may vary as to the population to be distributed, depending upon whether the context is one of providing additional counseling and support to students at low-performing schools (in which case the relevant population would likely consist of students), or one of identifying unsuccessful learning protocols at low-performing schools (in which case the appropriate population may well be the schools themselves). Context here tells us that the instruction to identify school districts with “per-pupil expenditures” above the 95th percentile “of such expenditures” is similarly ambiguous, because both students and school districts are of concern to the statute. Accordingly, the disregard instruction can include within its scope the distribution of a ranked population that consists of pupils (or of school districts weighted by pupils) and not just a ranked distribution of unweighted school districts alone. Finally, we draw reassurance from the fact that no group of statisticians, nor any individual statistician, has told us directly in briefs, or indirectly through citation, that the language before us cannot be read as we have read it. This circumstance is significant, for the statutory language is technical, and we are not statisticians. And the views of experts (or their absence) might help us understand (though not control our determination of) what Congress had in mind. The upshot is that the language of the statute is broad enough to permit the Secretary’s reading. That fact requires us to look beyond the language to determine whether the Secretary’s interpretation is a reasonable, hence permissible, implementation of the statute. See Chevron, 467 U. S., at 842–843. For the reasons set forth in Part II–A, supra, we conclude that the Secretary’s reading is a reasonable reading. We consequently find the Secretary’s method of calculation lawful. The judgment of the Tenth Circuit is affirmed. It is so ordered. APPENDIXES TO OPINION OF THE COURT A We set out the relevant statutory provisions and accompanying regulations in full. The reader will note that in the text of our opinion, for purposes of exposition, we use the term “local school districts” where the statute refers to “local educational agencies.” We also disregard the statute’s frequent references to local “revenues” because those references do not raise any additional considerations germane to this case. Impact Aid Program, 20 U. S. C. §7709 (2000 ed. and Supp. IV) (State consideration of payments in providing state aid): “(a) General prohibition “Except as provided in subsection (b) of this section, a State may not— “(1) consider payments under this subchapter in determining for any fiscal year— “(A) the eligibility of a local educational agency for State aid for free public education; or “(B) the amount of such aid; or “(2) make such aid available to local educational agencies in a manner that results in less State aid to any local educational agency that is eligible for such payment than such agency would receive if such agency were not so eligible. “(b) State equalization plans “(1) In general “A State may reduce State aid to a local educational agency that receives a payment under section 7702 or 7703(b) of this title (except the amount calculated in excess of 1.0 under section 7703(a)(2)(B) of this title and, with respect to a local educational agency that receives a payment under section 7703(b)(2) of this title, the amount in excess of the amount that the agency would receive if the agency were deemed to be an agency eligible to receive a payment under section 7703(b)(1) of this title and not section 7703(b)(2) of this title) for any fiscal year if the Secretary determines, and certifies under subsection (c)(3)(A) of this section, that the State has in effect a program of State aid that equalizes expenditures for free public education among local educational agencies in the State. “(2) Computation “(A) In general “For purposes of paragraph (1), a program of State aid equalizes expenditures among local educational agencies if, in the second fiscal year preceding the fiscal year for which the determination is made, the amount of per-pupil expenditures made by, or per-pupil revenues available to, the local educational agency in the State with the highest such per-pupil expenditures or revenues did not exceed the amount of such per-pupil expenditures made by, or per-pupil revenues available to, the local educational agency in the State with the lowest such expenditures or revenues by more than 25 percent. “(B) Other factors In making a determination under this subsec- tion, the Secretary shall— “(i) disregard local educational agencies with per-pupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures or revenues in the State; and “(ii) take into account the extent to which a program of State aid reflects the additional cost of providing free public education in particular types of local educational agencies, such as those that are geographically isolated, or to particular types of students, such as children with disabilities.” B 34 CFR §222.162 (2006) (What disparity standard must a State meet in order to be certified and how are disparities in current expenditures or revenues per pupil measured?): “(a) Percentage disparity limitation. The Secretary considers that a State aid program equalizes expenditures if the disparity in the amount of current expenditures or revenues per pupil for free public education among LEAs in the State is no more than 25 percent. In determining the disparity percentage, the Secretary disregards LEAs with per pupil expenditures or revenues above the 95th or below the 5th percentile of those expenditures or revenues in the State. The method for calculating the percentage of disparity in a State is in the appendix to this subpart. “(b)(1) Weighted average disparity for different grade level groups. If a State requests it, the Secretary will make separate disparity computations for different groups of LEAs in the State that have similar grade levels of instruction. “(2) In those cases, the weighted average disparity for all groups, based on the proportionate number of pupils in each group, may not be more than the percentage provided in paragraph (a) of this section. The method for calculating the weighted average disparity percentage is set out in the appendix to this subpart. “(c) Per pupil figure computations. In calculating the current expenditures or revenue disparities under this section, computations of per pupil figures are made on one of the following bases: “(1) The per pupil amount of current expenditures or revenue for an LEA is computed on the basis of the total number of pupils receiving free public education in the schools of the agency. The total number of pupils is determined in accordance with whatever standard measurement of pupil count is used in the State.” 34 CFR pt. 222, subpt. K, App. (2006) (Methods of Calculations for Treatment of Impact Aid Payments Under State Equalization Programs): “The following paragraphs describe the methods for making certain calculations in conjunction with determinations made under the regulations in this subpart. Except as otherwise provided in the regulations, these methods are the only methods that may be used in making these calculations. “1. Determinations of disparity standard compliance under § 222.162(b)(1). “(a) The determinations of disparity in current expenditures or revenue per pupil are made by— “(i) Ranking all LEAs having similar grade levels within the State on the basis of current expenditures or revenue per pupil for the second preceding fiscal year before the year of determination; “(ii) Identifying those LEAs in each ranking that fall at the 95th and 5th percentiles of the total number of pupils in attendance in the schools of those LEAs; and “(iii) Subtracting the lower current expenditure or revenue per pupil figure from the higher for those agencies identified in paragraph (ii) and dividing the difference by the lower figure. . . . . . “(b) In cases under §222.162(b), where separate computations are made for different groups of LEAs, the disparity percentage for each group is obtained in the manner described in paragraph (a) above. Then the weighted average disparity percentage for the State as a whole is determined by— “(i) Multiplying the disparity percentage for each group by the total number of pupils receiving free public education in the schools in that group; “(ii) Summing the figures obtained in paragraph (b)(i); and “(iii) Dividing the sum obtained in paragraph (b)(ii) by the total number of pupils for all the groups. Example Group 1 (grades 1–6), 80,000 pupils x 18% = 14,400 Group 2 (grades 7–12), 100,000 pupils x 22% = 22,000 Group 3 (grades 1–12), 20,000 pupils x 35% = 7,000 Total 200,000 pupils ....................................... 43,400 43,400/200,000=21.70% Disparity ”
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552.US.214
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The Federal Tort Claims Act (FTCA) waives the United States’ sovereign immunity for claims arising out of torts committed by federal employees, see 28 U. S. C. §1346(b)(1), but, as relevant here, exempts from that waiver “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any … property by any officer of customs or excise or any other law enforcement officer,” §2680(c). Upon his transfer from an Atlanta federal prison to one in Kentucky, petitioner noticed that several items were missing from his personal property, which had been shipped to the new facility by the Federal Bureau of Prisons (BOP). Alleging that BOP officers had lost his property, petitioner filed this suit under, inter alia, the FTCA, but the District Court dismissed that claim as barred by §2680(c). Affirming, the Eleventh Circuit rejected petitioner’s argument that the statutory phrase “any officer of customs or excise or any other law enforcement officer” applies only to officers enforcing customs or excise laws. Held: Section 2680(c)’s text and structure demonstrate that the broad phrase “any other law enforcement officer” covers all law enforcement officers. Petitioner’s argument that §2680(c) is focused on preserving sovereign immunity only for officers enforcing customs and excise laws is inconsistent with the statute’s language. “Read naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ” United States v. Gonzales, 520 U. S. 1, 5. For example, in considering a provision imposing an additional sentence that was not to run concurrently with “any other term of imprisonment,” 18 U. S. C. §924(c)(1), the Gonzales Court held that, notwithstanding the subsection’s initial reference to federal drug trafficking crimes, the expansive word “any” and the absence of restrictive language left “no basis in the text for limiting” the phrase “any other term of imprisonment” to federal sentences. 520 U. S., at 5. To similar effect, see Harrison v. PPG Industries, Inc., 446 U. S. 578, 588–589, in which the Court held that there was “no indication whatever that Congress intended” to limit the “expansive language” “ ‘any other final action’ ” to particular kinds of agency action. The reasoning of Gonzales and Harrison applies equally to 28 U. S. C. §2680(c): Congress’ use of “any” to modify “other law enforcement officer” is most naturally read to mean law enforcement officers of whatever kind. To be sure, the text’s references to “tax or customs duty” and “officer[s] of customs or excise” indicate an intent to preserve immunity for claims arising from an officer’s enforcement of tax and customs laws. The text also indicates, however, that Congress intended to preserve immunity for claims arising from the detention of property, and there is no indication of any intent that immunity for those claims turns on the type of law being enforced. Recent amendments to §2680(c) restoring the sovereign immunity waiver for officers enforcing any federal forfeiture law, see §2680(c)(1), support the Court’s conclusion by demonstrating Congress’ view that, prior to the amendments, §2680(c) covered all law enforcement officers. Against this textual and structural evidence, petitioner’s reliance on the canons of statutory construction ejusdem generis and noscitur a sociis and on the rule against superfluities is unconvincing. The Court is unpersuaded by petitioner’s attempt to create ambiguity where the statute’s structure and text suggest none. Had Congress intended to limit §2680(c)’s reach as petitioner contends, it easily could have written “any other law enforcement officer acting in a customs or excise capacity.” Instead, it used the unmodified, all-encompassing phrase “any other law enforcement officer.” This Court must give effect to the text Congress enacted. Pp. 3–13. 204 Fed. Appx. 778, affirmed. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Ginsburg, and Alito, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.
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This case concerns the scope of 28 U. S. C. §2680, which carves out certain exceptions to the United States’ waiver of sovereign immunity for torts committed by federal employees. Section 2680(c) provides that the waiver of sovereign immunity does not apply to claims arising from the detention of property by “any officer of customs or excise or any other law enforcement officer.” Petitioner contends that this clause applies only to law enforcement officers enforcing customs or excise laws, and thus does not affect the waiver of sovereign immunity for his property claim against officers of the Federal Bureau of Prisons (BOP). We conclude that the broad phrase “any other law enforcement officer” covers all law enforcement officers. Accordingly, we affirm the judgment of the Court of Appeals upholding the dismissal of petitioner’s claim. I Petitioner Abdus-Shahid M. S. Ali was a federal prisoner at the United States Penitentiary in Atlanta, Georgia, from 2001 to 2003. In December 2003, petitioner was scheduled to be transferred to the United States Penitentiary Big Sandy (USP Big Sandy) in Inez, Kentucky. Before being transferred, he left two duffle bags containing his personal property in the Atlanta prison’s Receiving and Discharge Unit to be inventoried, packaged, and shipped to USP Big Sandy. Petitioner was transferred, and his bags arrived some days later. Upon inspecting his property, he noticed that several items were missing. The staff at USP Big Sandy’s Receiving and Discharge Unit told him that he had been given everything that was sent, and that if things were missing he could file a claim. Many of the purportedly missing items were of religious and nostalgic significance, including two copies of the Qur’an, a prayer rug, and religious magazines. Petitioner estimated that the items were worth $177. Petitioner filed an administrative tort claim. In denying relief, the agency noted that, by his signature on the receipt form, petitioner had certified the accuracy of the inventory listed thereon and had thereby relinquished any future claims relating to missing or damaged property. Petitioner then filed a complaint alleging, inter alia, violations of the Federal Tort Claims Act (FTCA), 28 U. S. C. §§1346, 2671 et seq. The BOP maintained that petitioner’s claim was barred by the exception in §2680(c) for property claims against law enforcement officers. The District Court agreed and dismissed petitioner’s FTCA claim for lack of subject-matter jurisdiction. Petitioner appealed. The Eleventh Circuit affirmed, agreeing with the District Court’s interpretation of §2680(c). 204 Fed. Appx. 778, 779–780 (2006) (per curiam). In rejecting petitioner’s arguments, the Court of Appeals relied on this Court’s broad interpretation of §2680(c)’s “detention” clause in Kosak v. United States, 465 U. S. 848, 854–859 (1984), on decisions by other Courts of Appeals, and on its own decision in Schlaebitz v. United States Dept. of Justice, 924 F. 2d 193, 195 (1991) (per curiam) (holding that United States Marshals, who were allegedly negligent in releasing a parolee’s luggage to a third party, were “law enforcement officers” under §2680(c)). See 204 Fed. Appx., at 779–780. We granted certiorari, 550 U. S. ___ (2007), to resolve the disagreement among the Courts of Appeals as to the scope of §2680(c).[Footnote 1] II In the FTCA, Congress waived the United States’ sovereign immunity for claims arising out of torts committed by federal employees. See 28 U. S. C. §1346(b)(1). As relevant here, the FTCA authorizes “claims against the United States, for money damages . . . for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” Ibid. The FTCA exempts from this waiver certain categories of claims. See §§2680(a)–(n). Relevant here is the exception in subsection (c), which provides that §1346(b) shall not apply to “[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” §2680(c). This case turns on whether the BOP officers who allegedly lost petitioner’s property qualify as “other law enforcement officer[s]” within the meaning of §2680(c).[Footnote 2] Petitioner argues that they do not because “any other law enforcement officer” includes only law enforcement officers acting in a customs or excise capacity. Noting that Congress referenced customs and excise activities in both the language at issue and the preceding clause in §2680(c), petitioner argues that the entire subsection is focused on preserving the United States’ sovereign immunity only as to officers enforcing those laws. Petitioner’s argument is inconsistent with the statute’s language.[Footnote 3] The phrase “any other law enforcement officer” suggests a broad meaning. Ibid. (emphasis added). We have previously noted that “[r]ead naturally, the word ‘any’ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ” United States v. Gonzales, 520 U. S. 1, 5 (1997) (quoting Webster’s Third New International Dictionary 97 (1976)). In Gonzales, we considered a provision that imposed an additional sentence for firearms used in federal drug trafficking crimes and provided that such additional sentence shall not be concurrent with “any other term of imprisonment.” 520 U. S., at 4 (quoting 18 U. S. C. §924(c)(1) (1994 ed.) (emphasis deleted)). Notwithstanding the subsection’s initial reference to federal drug trafficking crimes, we held that the expansive word “any” and the absence of restrictive language left “no basis in the text for limiting” the phrase “any other term of imprisonment” to federal sentences. 520 U. S., at 5. Similarly, in Harrison v. PPG Industries, Inc., 446 U. S. 578 (1980), the Court considered the phrase “any other final action” in amendments to the Clean Air Act. The Court explained that the amendments expanded a list of Environmental Protection Agency Administrator actions by adding two categories of actions: actions under a specifically enumerated statutory provision, and “any other final action” under the Clean Air Act. Id., at 584 (emphasis deleted). Focusing on Congress’ choice of the word “any,” the Court “discern[ed] no uncertainty in the meaning of the phrase, ‘any other final action,’ ” and emphasized that the statute’s “expansive language offer[ed] no indication whatever that Congress intended” to limit the phrase to final actions similar to those in the specifically enumerated sections. Id., at 588–589. We think the reasoning of Gonzales and Harrison applies equally to the expansive language Congress employed in 28 U. S. C. §2680(c). Congress’ use of “any” to modify “other law enforcement officer” is most naturally read to mean law enforcement officers of whatever kind.[Footnote 4] The word “any” is repeated four times in the relevant portion of §2680(c), and two of those instances appear in the particular phrase at issue: “any officer of customs or excise or any other law enforcement officer.” (Emphasis added.) Congress inserted the word “any” immediately before “other law enforcement officer,” leaving no doubt that it modifies that phrase. To be sure, the text’s references to “tax or customs duty” and “officer[s] of customs or excise” indicate that Congress intended to preserve immunity for claims arising from an officer’s enforcement of tax and customs laws. The text also indicates, however, that Congress intended to preserve immunity for claims arising from the detention of property, and there is no indication that Congress intended immunity for those claims to turn on the type of law being enforced. Petitioner would require Congress to clarify its intent to cover all law enforcement officers by adding phrases such as “performing any official law enforcement function,” or “without limitation.” But Congress could not have chosen a more all-encompassing phrase than “any other law enforcement officer” to express that intent. We have no reason to demand that Congress write less economically and more repetitiously. Recent amendments to §2680(c) support the conclusion that “any other law enforcement officer” is not limited to officers acting in a customs or excise capacity. In the Civil Asset Forfeiture Reform Act of 2000, Congress added subsections (c)(1)–(c)(4) to 28 U. S. C. §2680. §3(a), 114 Stat. 211. As amended, §2680(c) provides that the §1346(b) waiver of sovereign immunity, notwithstanding the exception at issue in this case, applies to: “[A]ny claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if— “(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; “(2) the interest of the claimant was not forfeited; “(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and “(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law.” The amendment does not govern petitioner’s claim because his property was not “seized for the purpose of forfeiture,” as required by paragraph (1). Nonetheless, the amendment is relevant because our construction of “any other law enforcement officer” must, to the extent possible, ensure that the statutory scheme is coherent and consistent. See Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (citing United States v. Ron Pair Enterprises, 489 U. S. 235, 240 (1989)). The amendment canceled the exception—and thus restored the waiver of sovereign immunity—for certain seizures of property based on any federal forfeiture law. See 28 U. S. C. §2680(c)(1) (excepting property claims if “the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property” (emphasis added)). Under petitioner’s interpretation, only law enforcement officers enforcing customs or excise laws were immune under the prior version of §2680(c). Thus, on petitioner’s reading, the amendment’s only effect was to restore the waiver for cases in which customs or excise officers, or officers acting in such a capacity, enforce forfeiture laws. This strikes us as an implausible interpretation of the statute. If that were Congress’ intent, it is not apparent why Congress would have restored the waiver with respect to the enforcement of all civil forfeiture laws instead of simply those related to customs or excise. Petitioner’s interpretation makes sense only if we assume that Congress went out of its way to restore the waiver for cases in which customs or excise officers, or officers acting in such a capacity, enforce forfeiture laws unrelated to customs or excise. But petitioner fails to demonstrate that customs or excise officers, or officers acting in such a capacity, ever enforce civil forfeiture laws unrelated to customs or excise, much less that they do so with such frequency that Congress is likely to have singled them out in the amendment.[Footnote 5] It seems far more likely that Congress restored the waiver for officers enforcing any civil forfeiture law because, in its view, all such officers were covered by the exception to the waiver prior to the amendment. Against this textual and structural evidence that “any other law enforcement officer” does in fact mean any other law enforcement officer, petitioner invokes numerous canons of statutory construction. He relies primarily on ejusdem generis, or the principle that “when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.” Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117, 129 (1991). In petitioner’s view, “any officer of customs or excise or any other law enforcement officer” should be read as a three-item list, and the final, catchall phrase “any other law enforcement officer” should be limited to officers of the same nature as the preceding specific phrases. Petitioner likens his case to two recent cases in which we found the canon useful. In Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 375 (2003), we considered the clause “execution, levy, attachment, garnishment, or other legal process” in 42 U. S. C. §407(a). Applying ejusdem generis, we concluded that “other legal process” was limited to legal processes of the same nature as the specific items listed. 537 U. S., at 384–385. The department’s scheme for serving as a representative payee of the benefits due to children under its care, while a “legal process,” did not share the common attribute of the listed items, viz., “utilization of some judicial or quasi-judicial mechanism . . . by which control over property passes from one person to another in order to discharge” a debt. 537 U. S., at 385. Similarly, in Dolan v. Postal Service, 546 U. S. 481 (2006), the Court considered whether an exception to the FTCA’s waiver of sovereign immunity for claims arising out of the “ ‘loss, miscarriage, or negligent transmission of letters or postal matter’ ” barred a claim that mail negligently left on the petitioner’s porch caused her to slip and fall. Id., at 485 (quoting 28 U. S. C. §2680(b)). Noting that “loss” and “miscarriage” both addressed “failings in the postal obligation to deliver mail in a timely manner to the right address,” 546 U. S., at 487, the Court concluded that “negligent transmission” must be similarly limited, id., at 486–489, and rejected the Government’s argument that the exception applied to “all torts committed in the course of mail delivery,” id., at 490. Petitioner asserts that §2680(c), like the clauses at issue in Keffeler and Dolan, ‘ “presents a textbook ejusdem generis scenario.’ ” Brief for Petitioner 15 (quoting Andrews v. United States, 441 F. 3d 220, 224 (CA4 2006)). We disagree. The structure of the phrase “any officer of customs or excise or any other law enforcement officer” does not lend itself to application of the canon. The phrase is disjunctive, with one specific and one general category, not—like the clauses at issue in Keffeler and Dolan—a list of specific items separated by commas and followed by a general or collective term. The absence of a list of specific items undercuts the inference embodied in ejusdem generis that Congress remained focused on the common attribute when it used the catchall phrase. Cf. United States v. Aguilar, 515 U. S. 593, 615 (1995) (Scalia, J., concurring in part and dissenting in part) (rejecting the canon’s applicability to an omnibus clause that was “one of … several distinct and independent prohibitions” rather than “a general or collective term following a list of specific items to which a particular statutory command is applicable”). Moreover, it is not apparent what common attribute connects the specific items in §2680(c). Were we to use the canon to limit the meaning of “any other law enforcement officer,” we would be required to determine the relevant limiting characteristic of “officer of customs or excise.” In Jarecki v. G. D. Searle Co., 367 U. S. 303 (1961), for example, the Court invoked noscitur a sociis in limiting the scope of the term “ ‘discovery’ ” to the common characteristic it shared with “ ‘exploration’ ” and “ ‘prospecting.’ ” Id., at 307. The Court noted that all three words in conjunction “describe[d] income-producing activity in the oil and gas and mining industries.” Ibid. Here, by contrast, no relevant common attribute immediately appears from the phrase “officer of customs or excise.” Petitioner suggests that the common attribute is that both types of officers are charged with enforcing the customs and excise laws. But we see no reason why that should be the relevant characteristic as opposed to, for example, that officers of that type are commonly involved in the activities enumerated in the statute: the assessment and collection of taxes and customs duties and the detention of property. Petitioner’s appeals to other interpretive principles are also unconvincing. Petitioner contends that his reading is supported by the canon noscitur a sociis, according to which “a word is known by the company it keeps.” S. D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U. S. 370, 378 (2006). But the cases petitioner cites in support of applying noscitur a sociis involved statutes with stronger contextual cues. See Gutierrez v. Ada, 528 U. S. 250, 254–258 (2000) (applying the canon to narrow the relevant phrase, “any election,” where it was closely surrounded by six specific references to gubernatorial elections); Jarecki, supra, at 306–309 (applying the canon to narrow the term “discoveries” to discoveries of mineral resources where it was contained in a list of three words, all of which applied to the oil, gas, and mining industries and could not conceivably all apply to any other industry). Here, although customs and excise are mentioned twice in §2680(c), nothing in the overall statutory context suggests that customs and excise officers were the exclusive focus of the provision. The emphasis in subsection (c) on customs and excise is not inconsistent with the conclusion that “any other law enforcement officer” sweeps as broadly as its language suggests. Similarly, the rule against superfluities lends petitioner sparse support. The construction we adopt today does not necessarily render “any officer of customs or excise” superfluous; Congress may have simply intended to remove any doubt that officers of customs or excise were included in “law enforcement officers.” See Fort Stewart Schools v. FLRA, 495 U. S. 641, 646 (1990) (noting that “technically unnecessary” examples may have been “inserted out of an abundance of caution”). Moreover, petitioner’s construction threatens to render “any other law enforcement officer” superfluous because it is not clear when, if ever, “other law enforcement officer[s]” act in a customs or excise capacity.[Footnote 6] In any event, we do not woodenly apply limiting principles every time Congress includes a specific example along with a general phrase. See Harrison, 446 U. S., at 589, n. 6 (rejecting an argument that ejusdem generis must apply when a broad interpretation of the clause could render the specific enumerations unnecessary). In the end, we are unpersuaded by petitioner’s attempt to create ambiguity where the statute’s text and structure suggest none. Had Congress intended to limit §2680(c)’s reach as petitioner contends, it easily could have written “any other law enforcement officer acting in a customs or excise capacity.” Instead, it used the unmodified, all-encompassing phrase “any other law enforcement officer.” Nothing in the statutory context requires a narrowing construction—indeed, as we have explained, the statute is most consistent and coherent when “any other law enforcement officer” is read to mean what it literally says. See Norfolk & Western R. Co., 499 U. S., at 129 (noting that interpretive canons must yield “when the whole context dictates a different conclusion”). It bears emphasis, moreover, that §2680(c), far from maintaining sovereign immunity for the entire universe of claims against law enforcement officers, does so only for claims “arising in respect of” the “detention” of property. We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable.[Footnote 7] Instead, we must give effect to the text Congress enacted: Section 2680(c) forecloses lawsuits against the United States for the unlawful detention of property by “any,” not just “some,” law enforcement officers. III For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit is Affirmed. Footnote 1 The Eleventh Circuit joined five other Courts of Appeals in construing §2680(c) to encompass all law enforcement officers. See Bramwell v. Bureau of Prisons, 348 F. 3d 804, 806–807 (CA9 2003); Chapa v. Dept. of Justice, 339 F. 3d 388, 390 (CA5 2003) (per curiam); Hatten v. White, 275 F. 3d 1208, 1210 (CA10 2002); Cheney v. United States, 972 F. 2d 247, 248 (CA8 1992) (per curiam); Ysasi v. Rivkind, 856 F. 2d 1520, 1525 (CA Fed. 1988). Five other Courts of Appeals reached the contrary conclusion, interpreting the clause as limited to officers performing customs or excise functions. See ABC v. DEF, 500 F. 3d 103, 107 (CA2 2007); Dahler v. United States, 473 F. 3d 769, 771–772 (CA7 2007) (per curiam); Andrews v. United States, 441 F. 3d 220, 227 (CA4 2006); Bazuaye v. United States, 83 F. 3d 482, 486 (CADC 1996); Kurinsky v. United States, 33 F. 3d 594, 598 (CA6 1994). Footnote 2 We assume, without deciding, that the BOP officers “detained” Ali’s property and thus satisfy §2680(c)’s “arising in respect of … detention” requirement. The Court of Appeals held that the “detention” clause was satisfied, and petitioner expressly declined to raise the issue on certiorari. See 204 Fed. Appx. 778, 779–780 (CA11 2006) (per curiam); Brief for Petitioner 10–11, n. 9. Footnote 3 We consider this question for the first time in this case. Petitioner argues that this Court concluded in Kosak v. United States, 465 U. S. 848 (1984), that the phrase “any other law enforcement officer” is ambiguous. Reply Brief for Petitioner 4. In that case, the Court construed a portion of the same clause at issue here, but the decision had no bearing on the meaning of “any other law enforcement officer.” 465 U. S., at 853–862 (holding that “detention” encompasses claims resulting from negligent handling or storage). Indeed, the Court expressly declined to reach the issue. Id., at 852, n. 6 (“We have no occasion in this case to decide what kinds of ‘law-enforcement officer[s],’ other than customs officials, are covered by the exception.” (alteration in original)). Petitioner’s reliance on the footnote as concluding that the phrase is ambiguous reads too much into the Court’s reservation of a question that was not then before it. Footnote 4 Of course, other circumstances may counteract the effect of expansive modifiers. For example, we have construed an “any” phrase narrowly when it included a term of art that compelled that result. See Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115–116 (2001) (construing “any other class of workers engaged in . . . commerce,” 9 U. S. C. §1, narrowly based on the Court’s previous interpretation of “in commerce” as a term of art with a narrower meaning). We also have construed such phrases narrowly when another term in the provision made sense only under a narrow reading, see United States v. Alvarez-Sanchez, 511 U. S. 350, 357–358 (1994) (limiting “any law-enforcement officer” to federal officers because the statute’s reference to “delay” made sense only with respect to federal officers), and when a broad reading would have implicated sovereignty concerns, see Raygor v. Regents of Univ. of Minn., 534 U. S. 533, 541–542 (2002) (applying the “clear statement rule” applicable to waivers of sovereign immunity to construe the phrase “all civil actions” to exclude a category of claims, “even though nothing in the statute expressly exclude[d]” them). None of the circumstances that motivated our decisions in these cases is present here. Footnote 5 Justice Kennedy’s dissent (hereinafter the dissent) argues that, during border searches, customs and excise officers “routinely” enforce civil forfeiture laws unrelated to customs or excise. Post, at 12–13. But the examples the dissent provides do not support that assertion. The dissent maintains that a customs officer who seizes material defined as contraband under 49 U. S. C. §80302 et seq., is one such example. Post, at 12–13. But a customs officer’s authority to effect a forfeiture of such contraband derives from a specific customs law. See 19 U. S. C. §1595a(c)(1)(C). Similarly, the dissent suggests that a DEA agent “assisting a customs official” in a border search who seizes drug-related contraband under 21 U. S. C. §881 is acting in a “traditional revenue capacity.” Post, at 12–13. But that argument is based on the assumption that an officer who assists in conducting a border search acts in a customs capacity even if he is not a customs officer and is not enforcing a customs law. That assumption, far from self-evident, only underscores the difficulty that would attend any attempt to define the contours of the implied limitation on §2680(c)’s reach proposed by petitioner and embraced by the dissent. “Acting in a customs or excise capacity” is not a self-defining concept, and not having included such a limitation in the statute’s language, Congress of course did not provide a definition. Finally, the dissent points out that a customs or excise officer might effect a forfeiture of currency or monetary instruments under 31 U. S. C. §5317(c). Post, at 12–13. But §5317(c) is hardly a civil forfeiture law unrelated to customs or excise. See §5317(c)(2) (authorizing forfeiture of property involved in a violation of, inter alia, §5316, which sets forth reporting requirements for exporting and importing monetary instruments). Footnote 6 As an example of “other law enforcement officer[s]” acting in an excise or customs capacity, petitioner cites Formula One Motors, Ltd. v. United States, 777 F. 2d 822, 823–824 (CA2 1985) (holding that the seizure of a vehicle still in transit from overseas by Drug Enforcement Administration (DEA) agents who searched it for drugs was “sufficiently akin to the functions carried out by Customs officials to place the agents’ conduct within the scope of section 2680(c)”). But it is not clear that the agents in that case were acting in an excise or customs capacity rather than in their ordinary capacity as law enforcement agents. It seems to us that DEA agents searching a car for drugs are acting in their capacity as officers charged with enforcing the Nation’s drug laws, not the customs or excise laws. Similarly, the dissent notes that 14 U. S. C. §89(a) authorizes Coast Guard officers to enforce customs laws. Post, at 5-6. But the very next subsection of §89 provides that Coast Guard officers effectively are customs officers when they enforce customs laws. See §89(b)(1) (providing that Coast Guard officers “insofar as they are engaged, pursuant to the authority contained in this section, in enforcing any law of the United States shall … be deemed to be acting as agents of the particular executive department … charged with the administration of the particular law”). As a result, a Coast Guard officer enforcing a customs law is a customs officer, not some “other law enforcement officer.” Footnote 7Congress, we note, did provide an administrative remedy for lost property claimants like petitioner. Federal agencies have authority under 31 U. S. C. §3723(a)(1) to settle certain “claim[s] for not more than $1,000 for damage to, or loss of, privately owned property that … is caused by the negligence of an officer or employee of the United States Government acting within the scope of employment.” The BOP has settled more than 1,100 such claims in the last three years. Brief for Respondents 41, n. 17.
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553.US.662
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The Navy contracted with two shipyards to build destroyers, each of which needed generator sets (Gen-Sets) for electrical power. The shipyards subcontracted with petitioner Allison Engine Company, Inc. (Allison Engine), to build Gen-Sets, Allison Engine subcontracted with petitioner General Tool Company (GTC) to assemble them, and GTC subcontracted with petitioner Southern Ohio Fabricators, Inc. (SOFCO), to manufacture Gen-Set bases and enclosures. The subcontracts required that each Gen-Set be accompanied by a certificate of conformance (COC) certifying that the unit was manufactured according to Navy specifications. All of the funds paid under the contracts ultimately came from the U. S. Treasury. Former GTC employees Sanders and Thacker (hereinafter respondents) brought this qui tam suit seeking to recover damages from petitioners under the False Claims Act (FCA), which, inter alia, imposes civil liability on any person who knowingly uses a “false … statement to get a false or fraudulent claim paid or approved by the Government,” 31 U. S. C. §3729(a)(2), or who “conspires to defraud the Government by getting a false or fraudulent claim allowed or paid,” §3729(a)(3). At trial, respondents introduced evidence that petitioners had issued COCs falsely stating that their work was completed in compliance with Navy specifications and that they had presented invoices for payment to the shipyards. They did not, however, introduce the invoices the shipyards submitted to the Navy. The District Court granted petitioners judgment as a matter of law, concluding that, absent proof that false claims were presented to the Government, respondents’ evidence was legally insufficient under the FCA. The Sixth Circuit reversed in relevant part, holding, among other things, that respondents’ §§3729(a)(2) and (3) claims did not require proof of an intent to cause a false claim to be paid by the Government; proof of an intent to cause such a claim to be paid by a private entity using Government funds was sufficient. Held: 1. It is insufficient for a plaintiff asserting a §3729(a)(2) claim to show merely that the false statement’s use resulted in payment or approval of the claim or that Government money was used to pay the false or fraudulent claim. Instead, such a plaintiff must prove that the defendant intended that the false statement be material to the Government’s decision to pay or approve the false claim. Pp. 5–8. (a) The Sixth Circuit’s interpretation of §3729(a)(2) impermissibly deviates from the statute’s language, which requires the defendant to make a false statement “to get” a false or fraudulent claim “paid or approved by the Government.” Because “to get” denotes purpose, a person must have the purpose of getting a false or fraudulent claim “paid or approved by the Government” in order to be liable. Moreover, getting such a claim “paid … by the Government” is not the same as getting it paid using “government funds.” Under §3729(a)(2), a defendant must intend for the Government itself to pay the claim. Eliminating this element of intent would expand the FCA well beyond its intended role of combating “fraud against the Government.” Rainwater v. United States, 356 U. S. 590, 592. Pp. 5–6. (b) The Government’s contention that “paid … by the Government” does not mean literal Government payment is unpersuasive. The assertion that it is customary to say that the Government pays a bill when a recipient of Government funds uses those funds to pay involves a colloquial usage of the phrase “paid by” that is not customarily employed in statutory drafting, where precision is important and expected. Section 3729(c)’s definition of “claim” does not support the Government’s argument. The definition allows a request to be a “claim” even if it is not made directly to the Government, but, under §3729(a)(2), it is necessary that the defendant intend that a claim be “paid by the Government,” not by another entity. Pp. 6–7. (c) This does not mean, however, that §3729(a)(2) requires proof that a defendant’s false statement was submitted to the Government. Because the section requires only that the defendant make the false statement for the purpose of getting “a false or fraudulent claim paid or approved by the Government,” a subcontractor violates §3729(a)(2) if it submits a false statement to the prime contractor intending that contractor to use the statement to get the Government to pay its claim. However, if a subcontractor makes a false statement to a private entity but does not intend for the Government to rely on the statement as a condition of payment, the direct link between the statement and the Government’s decision to pay or approve a false claim is too attenuated to establish liability. The Court’s reading gives effect to Congress’ efforts to protect the Government from loss due to fraud but also ensures that “a defendant is not answerable for anything beyond the natural, ordinary, and reasonable consequences of his conduct.” Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 470. Pp. 7–9. 2. Similarly, it is not enough under §3729(a)(3) for a plaintiff to show that the alleged conspirators agreed upon a fraud scheme that had the effect of causing a private entity to make payments using money obtained from the Government. Instead, it must be shown that they intended “to defraud the Government.” Where their alleged conduct involved the making of a false statement, it need not be shown that they intended the statement to be presented directly to the Government, but it must be established that they agreed that the statement would have a material effect on the Government’s decision to pay the false or fraudulent claim. Pp. 8–10. 471 F. 3d 610, vacated and remanded. Alito, J., delivered the opinion for a unanimous Court.
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The False Claims Act (FCA) imposes civil liability on any person who knowingly uses a “false record or statement to get a false or fraudulent claim paid or approved by the Government,” 31 U. S. C. §3729(a)(2), and any person who “conspires to defraud the Government by getting a false or fraudulent claim allowed or paid,” §3729(a)(3). We granted review in this case to decide what a plaintiff asserting a claim under these provisions must show regarding the relationship between the making of a “false record or statement” and the payment or approval of “a false or fraudulent claim . . . by the Government.” Contrary to the decision of the Court of Appeals below, we hold that it is insufficient for a plaintiff asserting a §3729(a)(2) claim to show merely that “[t]he false statement’s use . . . result[ed] in obtaining or getting payment or approval of the claim,” 471 F. 3d 610, 621 (CA6 2006) or that “government money was used to pay the false or fraudulent claim,” id., at 622. Instead, a plaintiff asserting a §3729(a)(2) claim must prove that the defendant intended that the false record or statement be material to the Government’s decision to pay or approve the false claim. Similarly, a plaintiff asserting a claim under §3729(a)(3) must show that the conspirators agreed to make use of the false record or statement to achieve this end. I In 1985, the United States Navy entered into contracts with two shipbuilders, Bath Iron Works and Ingalls Shipbuilding (together the shipyards), to build a new fleet of Arleigh Burke class guided missile destroyers. Each destroyer required three generator sets (Gen-Sets) to supply all of the electrical power for the ship. The shipyards subcontracted with petitioner Allison Engine Company, Inc. (Allison Engine), formerly a division of General Motors, to build 90 Gen-Sets to be used in over 50 destroyers. Allison Engine in turn subcontracted with petitioner General Tool Company (GTC) to assemble the Gen-Sets, and GTC subcontracted with petitioner Southern Ohio Fabricators, Inc. (SOFCO), to manufacture bases and enclosures for the Gen-Sets. The Navy paid the shipyards an aggregate total of $1 billion for each new destroyer. Of that, Allison Engine was paid approximately $3 million per Gen-Set; GTC was paid approximately $800,000 per Gen-Set; and SOFCO was paid over $100,000 per Gen-Set. All of the funds used to pay petitioners ultimately came from the Federal Treasury. The Navy’s contract with the shipyards specified that every part of each destroyer be built in accordance with the Navy’s baseline drawings and military standards. These requirements were incorporated into each of petitioners’ subcontracts. In addition, the contracts required that each delivered Gen-Set be accompanied by a certificate of conformance (COC) certifying that the unit was manufactured in accordance with the Navy’s requirements. In 1995, Roger L. Sanders and Roger L. Thacker (hereinafter respondents), former employees of GTC, brought suit in the District Court for the Southern District of Ohio as qui tam relators seeking to recover damages pursuant to §3729, which renders liable any person who “knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval,” §3729(a)(1); any person who “knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government,” §3729(a)(2); and any person who “conspires to defraud the Government by getting a false or fraudulent claim allowed or paid,” §3729(a)(3). Respondents alleged that the invoices submitted to the shipyards by Allison Engine, GTC, and SOFCO fraudulently sought payment for work that had not been done in accordance with contract specifications. Specifically, respondents claimed that the gearboxes installed by Allison Engine in the first 52 Gen-Sets were defective and leaked oil; that GTC never conducted a required final quality inspection for approximately half of the first 67 Gen-Sets; and that the SOFCO welders who worked on the first 67 Gen-Sets did not meet military standards. Respondents also claimed that petitioners issued COCs claiming falsely that the Gen-Sets had been built to the contractually required specifications even though petitioners knew that those specifications had not been met. The case was tried to a jury. At trial, respondents introduced evidence that petitioners had issued COCs that falsely stated that their work was completed in compliance with the Navy’s requirements and that they had presented invoices for payment to the shipyards. Respondents did not, however, introduce the invoices submitted by the shipyards to the Navy. At the close of respondents’ case, petitioners moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). Petitioners asserted that no reasonable jury could find a violation under §3729 because respondents had failed to adduce any evidence that a false or fraudulent claim had ever been presented to the Navy. The District Court granted petitioners’ motion. No. 1–:95–cv–970, 2005 WL 713569 (SD Ohio, Mar. 11, 2005). The court rejected respondents’ argument that they did not have to present evidence that a claim had been submitted to the Navy because they showed that Government funds had been used to pay the invoices that were presented to the shipyards. The District Court concluded that, absent proof that false claims were presented to the Government, respondents’ evidence was legally insufficient under the FCA. Id., at *10. On appeal, a divided panel of the United States Court of Appeals for the Sixth Circuit reversed the District Court in relevant part. 471 F. 3d 610 (2006). The majority agreed with the District Court that liability under §3729(a)(1) requires proof that a false claim was presented to the Government. However, the Court of Appeals held that the District Court erred in granting petitioners’ motion for judgment as a matter of law with respect to respondents’ §§3729(a)(2) and (3) claims. The Court of Appeals held that such claims do not require proof of an intent to cause a false claim to be paid by the Government. Rather, it determined that proof of an intent to cause a false claim to be paid by a private entity using Government funds was sufficient. In so holding, the Court of Appeals recognized that its decision conflicted with United States ex rel. Totten v. Bombardier Corp., 380 F. 3d 488 (CADC 2004) (Totten), cert denied, 544 U. S. 1032 (2005). We granted certiorari to resolve the conflict over the proper interpretation of §§3729(a)(2) and (a)(3). 552 U. S. ___ (2007). II A We turn first to §3729(a)(2), and “[w]e start, as always, with the language of the statute.” Williams v. Taylor, 529 U. S. 420, 431 (2000). Section 3729(a)(2) imposes civil liability on any person who “knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government.” The interpretation of §3729(a)(2) that was adopted by the Court of Appeals—and that is endorsed by the respondents and the Government—impermissibly deviates from the statute’s language. In the view of the Court of Appeals, it is sufficient for a §3729(a)(2) plaintiff to show that a false statement resulted in the use of Government funds to pay a false or fraudulent claim. 471 F. 3d, at 621–622. Under subsection (a)(2), however, the defendant must make the false record or statement “to get” a false or fraudulent claim “paid or approved by the Government.” “To get” denotes purpose, and thus a person must have the purpose of getting a false or fraudulent claim “paid or approved by the Government” in order to be liable under §3729(a)(2). Additionally, getting a false or fraudulent claim “paid . . . by the Government” is not the same as getting a false or fraudulent claim paid using “government funds.” Id., at 622. Under §3729(a)(2), a defendant must intend that the Government itself pay the claim. Eliminating this element of intent, as the Court of Appeals did, would expand the FCA well beyond its intended role of combating “fraud against the Government.” See Rainwater v. United States, 356 U. S. 590, 592 (1958) (emphasis added). As the District of Columbia Circuit pointed out, the reach of §3729(a)(2) would then be “almost boundless: for example, liability could attach for any false claim made to any college or university, so long as the institution has received some federal grants—as most of them do.” Totten, supra, at 496. B Defending the Court of Appeals’ interpretation of §3729(a)(2), the Government contends that the phrase “paid … by the Government” does not mean that the Government must literally pay the bill. The Govern- ment maintains that it is customary to say that the Government pays a bill when a person who has received Government funds uses those funds to pay a bill. The Government provides this example: “ ‘[W]hen a student says his college living expenses are “paid by” his parents, he typically does not mean that his parents send checks directly to his creditors. Rather, he means that his parents are the ultimate source of the funds he uses to pay those expenses.’ ” Brief for United States as Ami- cus Curiae 9 (quoting Totten, supra, at 506 (Garland, J., dissenting)). This example is unpersuasive because it involves a colloquial usage of the phrase “paid by”—a usage that is not customarily employed in more formal contexts. For example, if a federal employee who receives all of his income from the Government were asked in a formal inquiry to reveal who paid for, say, his new car or a vacation, the employee would not say that the Federal Government had footed the bill. In statutory drafting, where precision is both important and expected, the sort of col- loquial usage on which the Government relies is not customary. The Government is also wrong in arguing that the definition of the term “claim” in §3729(c) means that §3729(a)(2)’s use of the phrase “paid by the government” should not be read literally. Under this definition, a request for money or property need not be made directly to the Government in order to constitute a “claim.” Instead, a “claim” may include a request or demand that is made to “a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.” §3729(c). This definition of the word “claim” does not support the Government’s argument because it does not alter the meaning of the phrase “by the Government” in §3729(a)(2). Under §3729(c)’s definition of “claim,” a request or demand may constitute a “claim” even if the request is not made directly to the Government, but under §3729(a)(2) it is still necessary for the defendant to intend that a claim be “paid … by the Government” and not by another entity.[Footnote 1] C This does not mean, however, as petitioners suggest, see Reply Brief 1, that §3729(a)(2) requires proof that a defendant’s false record or statement was submitted to the Government. While §3729(a)(1) requires a plaintiff to prove that the defendant “present[ed]” a false or fraudulent claim to the Government, the concept of presentment is not mentioned in §3729(a)(2). The inclusion of an express presentment requirement in subsection (a)(1), combined with the absence of anything similar in subsection (a)(2), suggests that Congress did not intend to include a presentment requirement in subsection (a)(2). “[W]hen 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.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 452 (2002) (internal quotation marks omitted). What §3729(a)(2) demands is not proof that the defendant caused a false record or statement to be presented or submitted to the Government but that the defendant made a false record or statement for the purpose of getting “a false or fraudulent claim paid or approved by the Government.” Therefore, a subcontractor violates §3729(a)(2) if the subcontractor submits a false statement to the prime contractor intending for the statement to be used by the prime contractor to get the Government to pay its claim.[Footnote 2] If a subcontractor or another defendant makes a false statement to a private entity and does not intend the Government to rely on that false statement as a condition of payment, the statement is not made with the purpose of inducing payment of a false claim “by the Government.” In such a situation, the direct link between the false statement and the Government’s decision to pay or approve a false claim is too attenuated to establish liability. Recognizing a cause of action under the FCA for fraud directed at private entities would threaten to transform the FCA into an all-purpose antifraud statute. Our reading of §3729(a)(2), based on the language of the statute, gives effect to Congress’ efforts to protect the Government from loss due to fraud but also ensures that “a defendant is not answerable for anything beyond the natural, ordinary and reasonable consequences of his conduct.” Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 470 (2006) (internal quotation marks omitted). III Respondents also brought suit under §3729(a)(3), which makes liable any person who “conspires to defraud the Government by getting a false or fraudulent claim allowed or paid.” Our interpretation of this language is similar to our interpretation of the language of §3729(a)(2). Under §3729(a)(3), it is not enough for a plaintiff to show that the alleged conspirators agreed upon a fraud scheme that had the effect of causing a private entity to make payments using money obtained from the Government. Instead, it must be shown that the conspirators intended “to defraud the Government.” Where the conduct that the conspirators are alleged to have agreed upon involved the making of a false record or statement, it must be shown that the conspirators had the purpose of “getting” the false record or statement to bring about the Government’s payment of a false or fraudulent claim. It is not necessary to show that the conspirators intended the false record or statement to be presented directly to the Government, but it must be established that they agreed that the false record or statement would have a material effect on the Government’s decision to pay the false or fraudulent claim. This reading of subsection (a)(3) is in accord with our decision in Tanner v. United States, 483 U. S. 107 (1987), where we held that a conspiracy to defraud a federally funded private entity does not constitute a “conspiracy to defraud the United States” under 18 U. S. C. §371. Id., at 129. In Tanner, the Government argued that a recipient of federal financial assistance and the subject of federal supervision may itself be treated as “the United States.” We rejected this reading of §371 as having “not even an arguable basis in the plain language of §371.” Id., at 131. Indeed, we concluded that such an interpretation “would have, in effect, substituted ‘anyone receiving federal financial assistance and supervision’ for the phrase ‘the United States.’ ” Id., at 132. Likewise, the interpretation urged on us by respondents would in effect substitute “paid or approved by the Government” for the phrase “paid by Government funds.” Had Congress intended subsection (a)(3) to apply to anyone who conspired to defraud a recipient of Government funds, it would have so provided. * * * Because the decision of the Court of Appeals was based on an incorrect interpretation of §§3729(a)(2) and (3), we vacate its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 This interpretation of §3729(a)(2) does not render superfluous the portion of §3729(c) providing that a “claim” may be made to a contractor, grantee, or other recipient of Government funding. This language makes it clear that there can be liability under §§3729(a)(1) and (2) where the request or demand for money or property that a defendant presents to a federal officer for payment or approval, §3729(a)(1), or that a defendant intends “to get … paid or approved by the Government”, §3729(a)(2), may be a request or demand that was originally “made to” a contractor, grantee, or other recipient of federal funds and then forwarded to the Government. Footnote 2 Section 3729(b) provides that the terms “knowing” and “knowingly” “mean that a person, with respect to information—(1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.” The statutory definition of these terms is easily reconcilable with our holding in this case for two reasons. First, the intent requirement we discern in §3729(a)(2) derives not from the term “knowingly,” but rather from the infinitive phrase “to get.” Second, §3729(b) refers to specific intent with regard to the truth or falsity of the “information,” while our holding refers to a defendant’s purpose in making or using a false record or statement.
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553.US.35
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Lethal injection is used for capital punishment by the Federal Government and 36 States, at least 30 of which (including Kentucky) use the same combination of three drugs: The first, sodium thiopental, induces unconsciousness when given in the specified amounts and thereby ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs, pancuronium bromide and potassium chloride. Among other things, Kentucky’s lethal injection protocol reserves to qualified personnel having at least one year’s professional experience the responsibility for inserting the intravenous (IV) catheters into the prisoner, leaving it to others to mix the drugs and load them into syringes; specifies that the warden and deputy warden will remain in the execution chamber to observe the prisoner and watch for any IV problems while the execution team administers the drugs from another room; and mandates that if, as determined by the warden and deputy, the prisoner is not unconscious within 60 seconds after the sodium thiopental’s delivery, a new dose will be given at a secondary injection site before the second and third drugs are administered. Petitioners, convicted murderers sentenced to death in Kentucky state court, filed suit asserting that the Commonwealth’s lethal injection protocol violates the Eighth Amendment’s ban on “cruel and unusual punishments.” The state trial court held extensive hearings and entered detailed factfindings and conclusions of law, ruling that there was minimal risk of various of petitioners’ claims of improper administration of the protocol, and upholding it as constitutional. The Kentucky Supreme Court affirmed, holding that the protocol does not violate the Eighth Amendment because it does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death. Held: The judgment is affirmed. 217 S. W. 3d 207, affirmed. Chief Justice Roberts, joined by Justice Kennedy and Justice Alito, concluded that Kentucky’s lethal injection protocol satisfies the Eighth Amendment. Pp. 8–24. 1. To constitute cruel and unusual punishment, an execution method must present a “substantial” or “objectively intolerable” risk of serious harm. A State’s refusal to adopt proffered alternative procedures may violate the Eighth Amendment only where the alternative procedure is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain. Pp. 8–14. (a) This Court has upheld capital punishment as constitutional. See Gregg v. Georgia, 428 U. S. 153, 177. Because some risk of pain is inherent in even the most humane execution method, if only from the prospect of error in following the required procedure, the Constitution does not demand the avoidance of all risk of pain. Petitioners contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain, while Kentucky urges the Court to approve the “ ‘substantial risk’ ” test used below. Pp. 8–9. (b) This Court has held that the Eighth Amendment forbids “punishments of torture, … and all others in the same line of unnecessary cruelty,” Wilkerson v. Utah, 99 U. S. 130, 136, such as disemboweling, beheading, quartering, dissecting, and burning alive, all of which share the deliberate infliction of pain for the sake of pain, id., at 135. Observing also that “[p]unishments are cruel when they involve torture or a lingering death[,] … something inhuman and barbarous [and] … more than the mere extinguishment of life,” the Court has emphasized that an electrocution statute it was upholding “was passed in the effort to devise a more humane method of reaching the result.” In re Kemmler, 136 U. S. 436, 447. Pp. 9–10. (c) Although conceding that an execution under Kentucky’s procedures would be humane and constitutional if performed properly, petitioners claim that there is a significant risk that the procedures will not be properly followed—particularly, that the sodium thiopental will not be properly administered to achieve its intended effect—resulting in severe pain when the other chemicals are administered. Subjecting individuals to a substantial risk of future harm can be cruel and unusual punishment if the conditions presenting the risk are “sure or very likely to cause serious illness and needless suffering” and give rise to “sufficiently imminent dangers.” Helling v. McKinney, 509 U. S. 25, 33, 34–35. To prevail, such a claim must present a “substantial risk of serious harm,” an “objectively intolerable risk of harm.” Farmer v. Brennan, 511 U. S. 825, 842, 846, and n. 9. For example, the Court has held that an isolated mishap alone does not violate the Eighth Amendment, Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463–464, because such an event, while regrettable, does not suggest cruelty or a “substantial risk of serious harm.” Pp. 10–12. (d) Petitioners’ primary contention is that the risks they have identified can be eliminated by adopting certain alternative procedures. Because allowing a condemned prisoner to challenge a State’s execution method merely by showing a slightly or marginally safer alternative finds no support in this Court’s cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing execution procedures, petitioners’ proposed “unnecessary risk” standard is rejected in favor of Farmer’s “substantial risk of serious harm” test. To effectively address such a substantial risk, a proffered alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. A State’s refusal to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for its current execution method, can be viewed as “cruel and unusual.” Pp. 12–14. 2. Petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. Pp. 14–23. (a) It is uncontested that failing a proper dose of sodium thiopental to render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and of pain from potassium chloride. It is, however, difficult to regard a practice as “objectively intolerable” when it is in fact widely tolerated. Probative but not conclusive in this regard is the consensus among the Federal Government and the States that have adopted lethal injection and the specific three-drug combination Kentucky uses. Pp. 14–15. (b) In light of the safeguards Kentucky’s protocol puts in place, the risks of administering an inadequate sodium thiopental dose identified by petitioners are not so substantial or imminent as to amount to an Eighth Amendment violation. The charge that Kentucky employs untrained personnel unqualified to calculate and mix an adequate dose was answered by the state trial court’s finding, substantiated by expert testimony, that there would be minimal risk of improper mixing if the manufacturers’ thiopental package insert instructions were followed. Likewise, the IV line problems alleged by petitioners do not establish a sufficiently substantial risk because IV team members must have at least one year of relevant professional experience, and the presence of the warden and deputy warden in the execution chamber allows them to watch for IV problems. If an insufficient dose is initially administered through the primary IV site, an additional dose can be given through the secondary site before the last two drugs are injected. Pp. 15–17. (c) Nor does Kentucky’s failure to adopt petitioners’ proposed alternatives demonstrate that the state execution procedure is cruel and unusual. Kentucky’s continued use of the three-drug protocol cannot be viewed as posing an “objectively intolerable risk” when no other State has adopted the one-drug method and petitioners have proffered no study showing that it is an equally effective manner of imposing a death sentence. Petitioners contend that Kentucky should omit pancuronium bromide because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of sodium thiopental. The state trial court specifically found that thiopental serves two purposes: (1) preventing involuntary convulsions or seizures during unconsciousness, thereby preserving the procedure’s dignity, and (2) hastening death. Petitioners assert that their barbiturate-only protocol is used routinely by veterinarians for putting animals to sleep and that 23 States bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide. These arguments overlook the States’ legitimate interest in providing for a quick, certain death, and in any event, veterinary practice for animals is not an appropriate guide for humane practices for humans. Petitioners charge that Kentucky’s protocol lacks a systematic mechanism, such as a Bispectral Index monitor, blood pressure cuff, or electrocardiogram, for monitoring the prisoner’s “anesthetic depth.” But expert testimony shows both that a proper thiopental does obviates the concern that a prisoner will not be sufficiently sedated, and that each of the proposed alternatives presents its own concerns. Pp. 17–23. Justice Stevens concluded that instead of ending the controversy, this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of pancuronium bromide, but also about the justification for the death penalty itself. States wishing to decrease the risk that future litigation will delay executions or invalidate their protocol would do well to reconsider their continued use of pancuronium bromide. Moreover, although experience demonstrates that imposing that penalty constitutes the pointless and needless extinction of life with only negligible social or public returns, this conclusion does not justify a refusal to respect this Court’s precedents upholding the death penalty and establishing a framework for evaluating the constitutionality of particular execution methods, under which petitioners’ evidence fails to prove that Kentucky’s protocol violates the Eighth Amendment. Pp. 1–18. Justice Thomas, joined by Justice Scalia, concluded that the plurality’s formulation of the governing standard finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in this Court’s previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve. The historical practices leading to the Clause’s inclusion in the Bill of Rights, the views of early commentators on the Constitution, and this Court’s cases, see, e.g., Wilkerson v. Utah, 99 U. S. 130, 135–136, all demonstrate that an execution method violates the Eighth Amendment only if it is deliberately designed to inflict pain. Judged under that standard, this is an easy case: Because it is undisputed that Kentucky adopted its lethal injection protocol in an effort to make capital punishment more humane, not to add elements of terror, pain, or disgrace to the death penalty, petitioners’ challenge must fail. Pp. 1–15. Justice Breyer concluded that there cannot be found, either in the record or in the readily available literature, sufficient grounds to believe that Kentucky’s lethal injection method creates a significant risk of unnecessary suffering. Although the death penalty has serious risks—e.g., that the wrong person may be executed, that unwarranted animus about the victims’ race, for example, may play a role, and that those convicted will find themselves on death row for many years—the penalty’s lawfulness is not before the Court. And petitioners’ proof and evidence, while giving rise to legitimate concern, do not show that Kentucky’s execution method amounts to “cruel and unusual punishmen[t].” Pp. 1–7. Roberts, C. J., announced the judgment of the Court and delivered an opinion, in which Kennedy and Alito, JJ., joined. Alito, J., filed a concurring opinion. Stevens, J., filed an opinion concurring in the judgment. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Breyer, J., filed an opinion concurring in the judgment. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.
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; Taylor v. Crawford, 487 F. 3d 1072, 1084 (CA8 2007). But more than this, Kentucky’s expert testified that a blood pressure cuff would have no utility in assessing the level of the prisoner’s unconsciousness following the introduction of sodium thiopental, which depresses circulation. App. 578. Furthermore, the medical community has yet to endorse the use of a BIS monitor, which measures brain function, as an indication of anesthetic awareness. American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 855 (Apr. 2006); see Brown v. Beck, 445 F. 3d 752, 754–755 (CA4 2006) (Michael, J., dissenting). The asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the entire procedure, given that both Kentucky law, see Ky. Rev. Stat. Ann. §431.220(3), and the American Society of Anesthesiologists’ own ethical guidelines, see Brief for American Society of Anesthesiologists as Amicus Curiae 2–3, prohibit anesthesiologists from participating in capital punishment. Nor is it pertinent that the use of a blood pressure cuff and EKG is “the standard of care in surgery requiring anesthesia,” as the dissent points out. Post, at 6. Petitioners have not shown that these supplementary procedures, drawn from a different context, are necessary to avoid a substantial risk of suffering. The dissent believes that rough-and-ready tests for checking consciousness—calling the inmate’s name, brushing his eyelashes, or presenting him with strong, noxious odors—could materially decrease the risk of administering the second and third drugs before the sodium thiopental has taken effect. See ibid. Again, the risk at issue is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug. Moreover, the scenario the dissent posits involves a level of unconsciousness allegedly sufficient to avoid detection of improper administration of the anesthesia under Kentucky’s procedure, but not sufficient to prevent pain. See post, at 9–10. There is no indication that the basic tests the dissent advocates can make such fine distinctions. If these tests are effective only in determining whether the sodium thiopental has entered the inmate’s bloodstream, see post, at 6, the record confirms that the visual inspection of the IV site under Kentucky’s procedure achieves that objective. See supra, at 17.[Footnote 6] The dissent would continue the stay of these executions (and presumably the many others held in abeyance pending decision in this case) and send the case back to the lower courts to determine whether such added measures redress an “untoward” risk of pain. Post, at 11. But an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the State’s legitimate interest in carrying out a sentence of death in a timely manner. See Baze v. Parker, 371 F. 3d 310, 317 (CA6 2004) (petitioner Baze sentenced to death in 1994); Bowling v. Parker, 138 F. Supp. 2d 821, 840 (ED Ky. 2001) (petitioner Bowling sentenced to death in 1991). Justice Stevens suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard. * * * Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, “[o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation.” 329 U. S., at 471 (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. “[T]he power of a State to pass laws means little if the State cannot enforce them.” McCleskey v. Zant, 499 U. S. 467, 491 (1991). State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to “objectively intolerable risk,” Farmer, 511 U. S., at 846, and n. 9, not simply the possibility of pain. Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggested—such as improper mixing of chemicals and improper setting of IVs by trained and experienced personnel—cannot remotely be characterized as “objectively intolerable.” Kentucky’s decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State. Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection. Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 657 (1992) (Stevens, J., dissenting); App. 755. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that today’s decision will be any different.[Footnote 7] The judgment below concluding that Kentucky’s procedure is consistent with the Eighth Amendment is, accordingly, affirmed. It is so ordered. Footnote 1 Twenty-seven of the 36 States that currently provide for capital punishment require execution by lethal injection as the sole method. See Ariz. Rev. Stat. Ann. §13–704 (West 2001); Ark. Code Ann. §5–4–617 (2006); Colo. Rev. Stat. Ann. §18–1.3–1202 (2007); Conn. Gen. Stat. §54–100 (2007); Del. Code Ann., Tit. 11, §4209 (2006 Supp.); Ga. Code Ann. §17–10–38 (2004); Ill. Comp. Stat., ch. 725, §5/119–5 (West 2006); Ind. Code §35–38–6–1 (West 2004); Kan. Stat. Ann. §22–4001 (2006 Cum. Supp.); Ky. Rev. Stat. Ann. §431.220 (West 2006); La. Stat. Ann. §15:569 (West 2005); Md. Crim. Law Code Ann. §2–303 (Lexis Supp. 2007); Miss. Code Ann. §99–19–51 (2007); Mont. Code Ann. §46–19–103 (2007); Nev. Rev. Stat. §176.355 (2007); N. J. Stat. Ann. §2C:49–2 (West 2007) (repealed Dec. 17, 2007); N. M. Stat. Ann. §31–14–11 (2000); N. C. Gen. Stat. Ann. §15–187 (Lexis 2007); N. Y. Correc. Law Ann. §658 (West 2003) (held unconstitutional in People v. LaValle, 3 N. Y. 3d 88, 130–131, 817 N. E. 2d 341, 367 (2004)); Ohio Rev. Code Ann. §2949.22 (Lexis 2006); Okla. Stat., Tit. 22, §1014 (West 2001); Ore. Rev. Stat. §137.473 (2003); Pa. Stat. Ann., Tit. 61, §3004 (Purdon 1999); S. D. Codified Laws §23A–27A–32 (Supp. 2007); Tenn. Code Ann. §40–23–114 (2006); Tex. Code Crim. Proc. Ann., Art. 43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. §77–18–5.5 (Lexis Supp. 2007); Wyo. Stat. Ann. §7–13–904 (2007). Nine States allow for lethal injection in addition to an alternative method, such as electrocution, see Ala. Code §§15–18–82 to 82.1 (Supp. 2007); Fla. Stat. §922.105 (2006); S. C. Code Ann. §24–3–530 (2007); Va. Code Ann. §53.1–234 (Lexis Supp. 2007), hanging, see N. H. Rev. Stat. Ann. §630:5 (2007); Wash. Rev. Code §10.95.180 (2006), lethal gas, see Cal. Penal Code Ann. §3604 (West 2000); Mo. Rev. Stat. §546.720 (2007 Cum. Supp.), or firing squad, see Idaho Code §19–2716 (Lexis 2004). Nebraska is the only State whose statutes specify electrocution as the sole method of execution, see Neb. Rev. Stat. §29–2532 (1995), but the Nebraska Supreme Court recently struck down that method under the Nebraska Constitution, see State v. Mata, No. S–05–1268, 2008 WL 351695, *40 (2008). Although it is undisputed that the States using lethal injection adopted the protocol first developed by Oklahoma without significant independent review of the procedure, it is equally undisputed that, in moving to lethal injection, the States were motivated by a desire to find a more humane alternative to then-existing methods. See Fordham Brief 2–3. In this regard, Kentucky was no different. See id., at 29–30 (quoting statement by the State Representative who sponsored the bill to replace electrocution with lethal injection in Kentucky: “if we are going to do capital punishment, it needs to be done in the most humane manner” (internal quotation marks omitted)). Footnote 2 The difficulties inherent in such approaches are exemplified by the controversy surrounding the study of lethal injection published in the April 2005 edition of the British medical journal the Lancet. After examining thiopental concentrations in toxicology reports based on blood samples drawn from 49 executed inmates, the study concluded that “most of the executed inmates had concentrations that would not be expected to produce a surgical plane of anaesthesia, and 21 (43%) had concentrations consistent with consciousness.” Koniaris, Zimmers, Lubarsky, & Sheldon, Inadequate Anaesthesia in Lethal Injection for Execution, 365 Lancet 1412, 1412–1413. The study was widely cited around the country in motions to stay executions and briefs on the merits. See, e.g., Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Ford. L. Rev. 49, 105, n. 366 (2007) (collecting cases in which claimants cited the Lancet study). But shortly after the Lancet study appeared, peer responses by seven medical researchers criticized the methodology supporting the original conclusions. See Groner, Inadequate Anaesthesia in Lethal Injection for Execution, 366 Lancet 1073–1074 (Sept. 2005). These researchers noted that because the blood samples were taken “several hours to days after” the inmates’ deaths, the postmortem concentrations of thiopental—a fat-soluble compound that passively diffuses from blood into tissue—could not be relied on as accurate indicators for concentrations during life. Id., at 1073. The authors of the original study responded to defend their methodology. Id., at 1074–1076. See also post, at 2–4 (Breyer, J., concurring in judgment). We do not purport to take sides in this dispute. We cite it only to confirm that a “best practices” approach, calling for the weighing of relative risks without some measure of deference to a State’s choice of execution procedures, would involve the courts in debatable matters far exceeding their expertise. Footnote 3 Justice Thomas agrees that courts have neither the authority nor the expertise to function as boards of inquiry determining best practices for executions, see post, at 9 (opinion concurring in judgment) (quoting this opinion); post, at 13, but contends that the standard we adopt inevitably poses such concerns. In our view, those concerns are effectively addressed by the threshold requirement reflected in our cases of a “ ‘substantial risk of serious harm’ ” or an “ ‘objectively intolerable risk of harm,’ ” see supra, at 11, and by the substantive requirements in the articulated standard. Footnote 4 Petitioners did allude to an “alternative chemical or combination of chemicals” that could replace Kentucky’s three-drug protocol in their post-trial brief, see App. 684, but based on the arguments presented there, it is clear they intended to refer only to other, allegedly less painful drugs that could substitute for potassium chloride as a heart-stopping agent, see id., at 701. Likewise, the only alternatives to the three-drug protocol presented to the Kentucky Supreme Court were those that replaced potassium chloride with other drugs for inducing cardiac arrest, or that omitted pancuronium bromide, or that added an analgesic to relieve pain. See Brief for Appellants in No. 2005–SC–00543, pp. 38, 39, 40. Footnote 5 Justice Stevens’s conclusion that the risk addressed by pancuronium bromide is “vastly outweighed” by the risk of pain at issue here, see post, at 3 (opinion concurring in judgment), depends, of course, on the magnitude of the risk of such pain. As explained, that risk is insignificant in light of the safeguards Kentucky has adopted. Footnote 6 Resisting this point, the dissent rejects the expert testimony that problems with the intravenous administration of sodium thiopental would be obvious, see post, at 10, testimony based not only on the pain that would result from injecting the first drug into tissue rather than the vein, see App. 600–601, but also on the swelling that would occur, see id., at 353. See also id., at 385–386. Neither of these expert conclusions was disputed below. Footnote 7 We do not agree with Justice Stevens that anything in our opinion undermines or remotely addresses the validity of capital punishment. See post, at 11. The fact that society has moved to progressively more humane methods of execution does not suggest that capital punishment itself no longer serves valid purposes; we would not have supposed that the case for capital punishment was stronger when it was imposed predominantly by hanging or electrocution.
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553.US.137
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The Armed Career Criminal Act (Act) imposes a special mandatory 15-year prison term upon a felon who unlawfully possesses a firearm and who has three or more prior convictions for committing certain drug crimes or “a violent felony.” 18 U. S. C. §924(e)(1). The Act defines “violent felony” as, inter alia, a crime punishable by more than one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii) (hereinafter clause (ii)). After petitioner Begay pleaded guilty to felony possession of a firearm, his presentence report revealed he had 12 New Mexico convictions for driving under the influence of alcohol (DUI), which state law makes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it. Based on these convictions, the sentencing judge concluded that Begay had three or more “violent felony” convictions and, therefore, sentenced him to an enhanced 15-year sentence. The Tenth Circuit rejected Begay’s claim that DUI is not a “violent felony” under the Act. Held: New Mexico’s felony DUI crime falls outside the scope of the Act’s clause (ii) “violent felony” definition. Pp. 3–10. (a) Whether a crime is a violent felony is determined by how the law defines it and not how an individual offender might have committed it on a particular occasion. Pp. 3–4. (b) Even assuming that DUI involves conduct that “presents a serious potential risk of physical injury to another” under clause (ii), the crime falls outside the clause’s scope because it is simply too unlike clause (ii)’s example crimes to indicate that Congress intended that provision to cover it. Pp. 4–10. (i) Clause (ii)’s listed examples—burglary, arson, extortion, and crimes involving the use of explosives—should be read as limiting the crimes the clause covers to those that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. Their presence in the statute indicates that Congress meant for the statute to cover only similar crimes, rather than every crime that “presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii). If Congress meant the statute to be all encompassing, it would not have needed to include the examples at all. Moreover, if clause (ii) were meant to include all risky crimes, Congress likely would not have included clause (i), which includes crimes that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” And had Congress included the examples solely for quantitative purposes, demonstrating no more than the degree of risk of physical injury sufficient to bring a crime within the statute’s scope, it would likely have chosen examples that better illustrated the degree of risk it had in mind rather than these that are far from clear in respect to the degree of risk each poses. The Government’s argument that the word “otherwise” just after the examples is sufficient to demonstrate that they do not limit the clause’s scope is rejected because “otherwise” can refer to a crime that is, e.g., similar to the examples in respect to the degree of risk it produces, but different in respect to the way or manner in which it produces that risk. Pp. 4–7. (ii) DUI differs from the example crimes in at least one important respect: The examples typically involve purposeful, violent, and aggressive conduct, whereas DUI statutes typically do not. When viewed in terms of the Act’s purposes, this distinction matters considerably. The Act looks to past crimes to determine which offenders create a special danger by possessing a gun. In this respect, a history of crimes involving purposeful, violent, and aggressive conduct, which shows an increased likelihood that the offender is the kind of person who might deliberately point a gun and pull the trigger, is different from a history of DUI, which does not involve the deliberate kind of behavior associated with violent criminal use of firearms. Pp. 7–10. 470 F. 3d 964, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Souter and Thomas, JJ., joined.
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The Armed Career Criminal Act imposes a special mandatory 15-year prison term upon felons who unlawfully possess a firearm and who also have three or more previous convictions for committing certain drug crimes or “violent felon[ies].” 18 U. S. C. §924(e)(1) (2000 ed., Supp. V). The question in this case is whether driving under the influence of alcohol is a “violent felony” as the Act defines it. We conclude that it is not. I A Federal law prohibits a previously convicted felon from possessing a firearm. §922(g)(1) (2000 ed.). A related provision provides for a prison term of up to 10 years for an ordinary offender. §924(a)(2). The Armed Career Criminal Act imposes a more stringent 15-year mandatory minimum sentence on an offender who has three prior convictions “for a violent felony or a serious drug offense.” §924(e)(1) (2000 ed., Supp. V). The Act defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B) (2000 ed.). We here consider whether driving under the influence of alcohol (DUI), as set forth in New Mexico’s criminal statutes, falls within the scope of the second clause. B The relevant background circumstances include the following: In September 2004, New Mexico police officers received a report that Larry Begay, the petitioner here, had threatened his sister and aunt with a rifle. The police arrested him. Begay subsequently conceded he was a felon and pleaded guilty to a federal charge of unlawful possession of a firearm in violation of §922(g)(1). Begay’s presentence report said that he had been convicted a dozen times for DUI, which under New Mexico’s law, becomes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it. See N. M. Stat. Ann. §§66–8–102(G) to (J) (Supp. 2007). The sentencing judge consequently found that Begay had at least three prior convictions for a crime “punishable by imprisonment for a term exceeding one year.” 377 F. Supp. 2d 1141, 1143 (NM 2005). The judge also concluded that Begay’s “three felony DUI convictions involve conduct that presents a serious potential risk of physical injury to another.” Id., at 1145. The judge consequently concluded that Begay had three or more prior convictions for a “violent felony” and should receive a sentence that reflected a mandatory minimum prison term of 15 years. Ibid. Begay, claiming that DUI is not a “violent felony” within the terms of the statute, appealed. The Court of Appeals panel by a vote of 2 to 1 rejected that claim. 470 F. 3d 964 (CA10 2006). Begay sought certiorari, and we agreed to decide the question. II A New Mexico’s DUI statute makes it a crime (and a felony after three earlier convictions) to “drive a vehicle within [the] state” if the driver “is under the influence of intoxicating liquor” (or has an alcohol concentration of .08 or more in his blood or breath within three hours of having driven the vehicle resulting from “alcohol consumed before or while driving the vehicle”). §§66–8–102(A), (C). In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion. See Taylor v. United States, 495 U. S. 575, 602 (1990) (adopting this “categorical approach”); see also James v. United States, 550 U. S. ___ , ___ (2007) (slip op., at 14–15) (attempted burglary is a violent felony even if, on some occasions, it can be committed in a way that poses no serious risk of physical harm). We also take as a given that DUI does not fall within the scope of the Act’s clause (i) “violent felony” definition. DUI, as New Mexico defines it, nowhere “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U. S. C. §924(e)(2)(B)(i). Finally, we assume that the lower courts were right in concluding that DUI involves conduct that “presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). Drunk driving is an extremely dangerous crime. In the United States in 2006, alcohol-related motor vehicle crashes claimed the lives of more than 17,000 individuals and harmed untold amounts of property. National Highway Traffic Safety Admin., Traffic Safety Facts, 2006 Traffic Safety Annual Assessment—Alcohol-Related Fatalities 1 (No. 810821, Aug. 2007), http://www-nrd.nhtsa.dot.gov/Pubs/810821.PDF (as visited Apr. 11, 2008, and available in Clerk of Court’s case file). Even so, we find that DUI falls outside the scope of clause (ii). It is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it. B 1 In our view, the provision’s listed examples—burglary, arson, extortion, or crimes involving the use of explosives—illustrate the kinds of crimes that fall within the statute’s scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that “presents a serious potential risk of physical injury to another.” §924(e)(2)(B)(ii). If Congress meant the latter, i.e., if it meant the statute to be all-encompassing, it is hard to see why it would have needed to include the examples at all. Without them, clause (ii) would cover all crimes that present a “serious potential risk of physical injury.” Ibid. Additionally, if Congress meant clause (ii) to include all risky crimes, why would it have included clause (i)? A crime which has as an element the “use, attempted use, or threatened use of physical force” against the person (as clause (i) specifies) is likely to create “a serious potential risk of physical injury” and would seem to fall within the scope of clause (ii). Of course, Congress might have included the examples solely for quantitative purposes. Congress might have intended them to demonstrate no more than the degree of risk sufficient to bring a crime within the statute’s scope. But were that the case, Congress would have likely chosen examples that better illustrated the “degree of risk” it had in mind. Our recent case, James v. United States—where we considered only matters of degree, i.e., whether the amount of risk posed by attempted burglary was comparable to the amount of risk posed by the example crime of burglary—illustrates the difficulty of interpreting the examples in this respect. Compare 550 U. S., at ___ (slip op., at 9–13), with id., at ___ (slip op., at 2, 5–6, 16–17) (Scalia, J., dissenting). Indeed, the examples are so far from clear in respect to the degree of risk each poses that it is difficult to accept clarification in respect to degree of risk as Congress’ only reason for including them. See id., at ___ (slip op., at 16–17) (“Congress provided examples [that] … have little in common, most especially with respect to the level of risk of physical injury that they pose”). These considerations taken together convince us that, “ ‘to give effect . . . to every clause and word’ ” of this statute, we should read the examples as limiting the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. Duncan v. Walker, 533 U. S. 167, 174 (2001) (quoting United States v. Menasche, 348 U. S. 528, 538–539 (1955); some internal quotation marks omitted); see also Leocal v. Ashcroft, 543 U. S. 1, 12 (2004) (describing the need to interpret a statute in a way that gives meaning to each word). The concurrence complains that our interpretive approach is insufficiently specific. See post, at 3–4 (Scalia, J., concurring in judgment). But the concurrence’s own approach demands a crime-by-crime analysis, uses a standard of measurement (comparative degree of risk) that even the concurrence admits is often “unclear,” post, at 4, requires the concurrence to turn here to the still less clear “rule of lenity,” post, at 6, and, as we explain, is less likely to reflect Congress’ intent. See, e.g., post, at 6–7 (recognizing inability to measure quantitative seriousness of risks associated with DUI). The statute’s history offers further support for our conclusion that the examples in clause (ii) limit the scope of the clause to crimes that are similar to the examples themselves. Prior to the enactment of the current language, the Act applied its enhanced sentence to offenders with “three previous convictions for robbery or burglary.” Taylor, 495 U. S., at 581 (internal quotation marks omitted). Congress sought to expand that definition to include both crimes against the person (clause (i)) and certain physically risky crimes against property (clause (ii)). See H. R. Rep. No. 99–849, p. 3 (1986) (hereinafter H. R. Rep.). When doing so, Congress rejected a broad proposal that would have covered every offense that involved a substantial risk of the use of “ ‘physical force against the person or property of another.’ ” Taylor, supra, at 583 (quoting S. 2312, 99th Cong., 2d Sess. (1986); H. R. 4639, 99th Cong., 2d Sess. (1986)). Instead, it added the present examples. And in the relevant House Report, it described clause (ii) as including “State and Federal felonies against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person.” H. R. Rep., at 5 (emphasis added). Of course, the statute places the word “otherwise,” just after the examples, so that the provision covers a felony that is one of the example crimes “or otherwise involves conduct that presents a serious potential risk of physical injury.” §924(e)(2)(B)(ii) (emphasis added). But we cannot agree with the Government that the word “otherwise” is sufficient to demonstrate that the examples do not limit the scope of the clause. That is because the word “otherwise” can (we do not say must, cf. post, at 4 (Scalia, J., concurring in judgment)) refer to a crime that is similar to the listed examples in some respects but different in others—similar say in respect to the degree of risk it produces, but different in respect to the “way or manner” in which it produces that risk. Webster’s Third New International Dictionary 1598 (1961) (defining “otherwise” to mean “in a different way or manner”). 2 In our view, DUI differs from the example crimes—burglary, arson, extortion, and crimes involving the use of explosives—in at least one pertinent, and important, respect. The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct. 470 F. 3d, at 980 (McConnell, J., dissenting in part); see, e.g., Taylor, supra, at 598 (“burglary” is an unlawful or unprivileged entry into a building or other structure with “intent to commit a crime”); ALI Model Penal Code §220.1(1) (1985) (“arson” is causing a fire or explosion with “the purpose of,” e.g., “destroying a building … of another” or “damaging any property … to collect insurance”); id., §223.4 (extortion is “purposely” obtaining property of another through threat of, e.g., inflicting “bodily injury”); Leocal, supra, at 9 (the word “ ‘use’ … most naturally suggests a higher degree of intent than negligent or merely accidental conduct” which fact helps bring it outside the scope of the statutory term “crime of violence”). That conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and aggressive manner are “potentially more dangerous when firearms are involved.” 470 F. 3d, at 980 (McConnell, J., dissenting in part). And such crimes are “characteristic of the armed career criminal, the eponym of the statute.” Ibid. By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all. The Government argues that “the knowing nature of the conduct that produces intoxication combined with the inherent recklessness of the ensuing conduct more than suffices” to create an element of intent. Brief for United States 35. And we agree with the Government that a drunk driver may very well drink on purpose. But this Court has said that, unlike the example crimes, the conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate. See Leocal, 543 U. S., at 11 (a DUI offense involves “accidental or negligent conduct”); see also 470 F. 3d, at 980 (McConnell, J., dissenting in part) (“[D]runk driving is a crime of negligence or recklessness, rather than violence or aggression”). When viewed in terms of the Act’s basic purposes, this distinction matters considerably. As suggested by its title, the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun. See Taylor, supra, at 587–588; 470 F. 3d, at 981, n. 3 (McConnell, J., dissenting in part) (“[T]he title [of the Act] was not merely decorative”). In order to determine which offenders fall into this category, the Act looks to past crimes. This is because an offender’s criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun. In this respect—namely, a prior crime’s relevance to the possibility of future danger with a gun—crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender’s prior crimes reveal a degree of callousness toward risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.” See, e.g., Ark. Code Ann. §8–4–103(a)(2)(A)(ii) (2007) (reckless polluters); 33 U. S. C. §1319(c)(1) (individuals who negligently introduce pollutants into the sewer system); 18 U. S. C. §1365(a) (individuals who recklessly tamper with consumer products); §1115 (seamen whose inattention to duty causes serious accidents). We have no reason to believe that Congress intended to bring within the statute’s scope these kinds of crimes, far removed as they are from the deliberate kind of behavior associated with violent criminal use of firearms. The statute’s use of examples (and the other considerations we have mentioned) indicate the contrary. The dissent’s approach, on the other hand, would likely include these crimes within the statutory definition of “violent felony,” along with any other crime that can be said to present “a serious potential risk of physical injury.” Post, at 2 (opinion of Alito, J.). And it would do so because it believes such a result is compelled by the statute’s text. See ibid. But the dissent’s explanation does not account for a key feature of that text—namely, the four example crimes intended to illustrate what kind of “violent felony” the statute covers. The dissent at most believes that these examples are relevant only to define the “requisite” serious risk associated with a “crime of violence.” Post, at 6. But the dissent does not explain what it means by “requisite,” nor does it describe how these various examples might help define that term in the context of this statute. If they were in fact helpful on that score, we might expect more predictable results from a purely risk-based approach. Compare post, at 1, 6–7 (Scalia, J., concurring in judgment), with post, at 1–4 (dissenting opinion). Thus, the dissent’s reliance on these examples for a function they appear incapable of performing reads them out of the statute and, in so doing, fails to effectuate Congress’ purpose to punish only a particular subset of offender, namely career criminals. The distinction we make does not minimize the seriousness of the risks attached to driving under the influence. Nor does our argument deny that an individual with a criminal history of DUI might later pull the trigger of a gun. (Indeed, we may have such an instance before us. 470 F. 3d, at 965.) Rather, we hold only that, for purposes of the particular statutory provision before us, a prior record of DUI, a strict liability crime, differs from a prior record of violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives. The latter are associated with a likelihood of future violent, aggressive, and purposeful “armed career criminal” behavior in a way that the former are not. We consequently conclude that New Mexico’s crime of “driving under the influence” falls outside the scope of the Armed Career Criminal Act’s clause (ii) “violent felony” definition. And we reverse the judgment of the Court of Appeals in relevant part and remand the case for proceedings consistent with this opinion. It is so ordered.
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552.US.421
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One element of tax evasion under 26 U. S. C. §7201 is “the existence of a tax deficiency.” Sansone v. United States, 380 U. S. 343, 351. Petitioner Boulware was charged with criminal tax evasion and filing a false income tax return for diverting funds from a closely held corporation, HIE, of which he was the president, founder, and controlling shareholder. To support his argument that the Government could not establish the tax deficiency required to convict him, Boulware sought to introduce evidence that HIE had no earnings and profits in the relevant taxable years, so he in effect received distributions of property that were returns of capital, up to his basis in his stock, which are not taxable, see 26 U. S. C. §§301 and 316(a). Under §301(a), unless the Internal Revenue Code requires otherwise, a “distribution of property” “made by a corporation to a shareholder with respect to its stock shall be treated in the manner provided in [§301(c)].” Section 301(c) provides that the portion of the distribution that is a “dividend,” as defined by §316(a), must be included in the recipient’s gross income; and the portion that is not a dividend is, depending on the shareholder’s basis for his stock, either a nontaxable return of capital or a taxable capital gain. Section 316(a) defines “dividend” as a “distribution” out of “earnings and profits.” The District Court granted the Government’s in limine motion to bar evidence supporting Boulware’s return-of-capital theory, relying on the Ninth Circuit’s Miller decision that a diversion of funds in a criminal tax evasion case may be deemed a return of capital only if the taxpayer or corporation demonstrates that the distributions were intended to be such a return. The court later found Boulware’s proffer of evidence insufficient under Miller and declined to instruct the jury on his theory. In affirming his conviction, the Ninth Circuit held that Boulware’s proffer was properly rejected under Miller because he offered no proof that the amounts diverted were intended as a return of capital when they were made. Held: A distributee accused of criminal tax evasion may claim return-of-capital treatment without producing evidence that, when the distribution occurred, either he or the corporation intended a return of capital. Pp. 6–17. (a) Tax classifications like “dividend” and “return of capital” turn on a transaction’s “objective economic realities,” not “the particular form the parties employed.” Frank Lyon Co. v. United States, 435 U. S. 561, 573. In economic reality, a shareholder’s informal receipt of corporate property “may be as effective a means of distributing profits among stockholders as the formal declaration of a dividend,” Palmer v. Commissioner, 302 U. S. 63, 69, or as effective a means of returning a shareholder’s capital, see ibid. Economic substance remains the touchstone for characterizing funds that a shareholder diverts before they can be recorded on a corporation’s books. Pp. 6–8. (b) Miller’s view that a return-of-capital defense requires evidence of a corresponding contemporaneous intent sits uncomfortably not only with the tax law’s economic realism, but also with the particular wording of §§301 and 316(a). As these sections are written, the tax consequences of a corporation’s distribution made with respect to stock depend, not on anyone’s purpose to return capital or get it back, but on facts wholly independent of intent: whether the corporation had earnings and profits, and the amount of the taxpayer’s basis for his stock. The Miller court could claim no textual hook for its contemporaneous intent requirement, but argued that it avoided supposed anomalies. The court, however, mistakenly reasoned that applying §§301 and 316(a) in criminal cases unnecessarily emphasizes the deficiency’s amount while ignoring the willfulness of the intent to evade taxes. Willfulness is an element of the crimes because the substantive provisions defining tax evasion and filing a false return expressly require it, see, e.g., §7201. Nothing in §§301 and 316(a) relieves the Government of the burden of proving willfulness or impedes it from doing so if there is evidence of willfulness. The Miller court also erred in finding it troublesome that, without a contemporaneous intent requirement, a shareholder distributee would be immune from punishment if the corporation had no earnings and profits but convicted if the corporation did have earning and profits. An acquittal in the former instance would in fact result merely from the Government’s failure to prove an element of the crime. The fact that a shareholder of a successful corporation may have different tax liability from a shareholder of a corporation without earnings and profits merely follows from the way §§301 and 316(a) are written and from §7201’s tax deficiency requirement. Even if there were compelling reasons to extend §7201 to cases in which no taxes are owed, Congress, not the Judiciary, would have to do the rewriting. Pp. 8–12. (c) Miller also suffers from its own anomalies. First, §§301 and 316 are odd stalks for grafting a contemporaneous intent requirement. Correct application of their rules will often become possible only at the end of the corporation’s tax year, regardless of the shareholder or corporation’s understanding months earlier when a particular distribution may have been made. Moreover, §301(a), which expressly provides that distributions made with respect to stock “shall be treated in the manner provided in [§301(c)],” ostensibly provides for all variations of tax treatment of such distributions unless a separate Code provision requires otherwise. Yet Miller effectively converts the section into one of merely partial coverage, leaving the tax status of one class of distributions in limbo in criminal cases. Allowing §61(a) of the Code, which defines gross income, “[e]xcept as otherwise provided,” as “all income from whatever source derived,” to step in where §301(a) has been pushed aside would sanction yet another eccentricity: §301(a) would not cover what it says it “shall,” (distributions with respect to stock for which no more specific provision is made), while §61(a) would have to apply to what by its terms it should not (a receipt of funds for which tax treatment is “otherwise provided” in §301(a)). Miller erred in requiring contemporaneous intent, and the Ninth Circuit’s judgment here, relying on Miller, is likewise erroneous. Pp. 12–14. (d) This Court declines to address the Government’s argument that the judgment should be affirmed on the ground that before any distribution may be treated as a return of capital, it must first be distributed to the shareholder “with respect to … stock.” The facts in this case have not been raked over with that condition in mind, and any canvas of evidence and Boulware’s proffer should be made by a court familiar with the entire evidentiary record. Nor will the Court take up in the first instance the question whether an unlawful diversion may ever be deemed a “distribution … with respect to [a corporation’s] stock.” Pp. 14–17. 470 F. 3d 931, vacated and remanded. Souter, J., delivered the opinion for a unanimous Court.
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Sections 301 and 316(a) of the Internal Revenue Code set the conditions for treating certain corporate distributions as returns of capital, nontaxable to the recipient. 26 U. S. C. §§301, 316(a) (2000 ed. and Supp. V.). The question here is whether a distributee accused of criminal tax evasion may claim return-of-capital treatment without producing evidence that either he or the corporation intended a capital return when the distribution occurred. We hold that no such showing is required. I “[T]he capstone of [the] system of sanctions … calculated to induce … fulfillment of every duty under the income tax law,” Spies v. United States, 317 U. S. 492, 497 (1943), is 26 U. S. C. §7201, making it a felony willfully to “attemp[t] in any manner to evade or defeat any tax imposed by” the Code.[Footnote 1] One element of tax evasion under §7201 is “the existence of a tax deficiency,” Sansone v. United States, 380 U. S. 343, 351 (1965); see also Lawn v. United States, 355 U. S. 339, 361 (1958),[Footnote 2] which the Government must prove beyond a reasonable doubt, see ibid. (“[O]f course, a conviction upon a charge of attempting to evade assessment of income taxes by the filing of a fraud- ulent return cannot stand in the absence of proof of a deficiency”). Any deficiency determination in this case will turn on §§301 and 316(a) of the Code. According to §301(a), unless another provision of the Code requires otherwise, a “distribution of property” that is “made by a corporation to a shareholder with respect to its stock shall be treated in the manner provided in [§301(c)].” Under §301(c), the portion of the distribution that is a “dividend,” as defined by §316(a), must be included in the recipient’s gross income; and the portion that is not a dividend is, depending on the shareholder’s basis for his stock, either a nontaxable return of capital or a gain on the sale or exchange of stock, ordinarily taxable to the shareholder as a capital gain. Finally, §316(a) defines “dividend” as “any distribution of property made by a corporation to its shareholders— “(1) out of its earnings and profits accumulated after February 28, 1913, or “(2) out of its earnings and profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.” Sections 301 and 316(a) together thus make the existence of “earnings and profits”[Footnote 3] the decisive fact in determining the tax consequences of distributions from a corporation to a shareholder with respect to his stock. This requirement of “relating the tax status of corporate distributions to earnings and profits is responsive to a felt need for protecting returns of capital from tax.” 4 Bittker & Lokken ¶92.1.1, p. 92–3. II In this criminal tax proceeding, petitioner Michael Boulware was charged with several counts of tax evasion and filing a false income tax return, stemming from his diversion of funds from Hawaiian Isles Enterprises (HIE), a closely held corporation of which he was the president, founder, and controlling (though not sole) shareholder. At trial,[Footnote 4] the United States sought to establish that Boulware had received taxable income by “systematically divert[ing] funds from HIE in order to support a lavish lifestyle.” 384 F. 3d 794, 799 (CA9 2004). The Government’s evidence showed that “[Boulware] gave millions of dollars of HIE money to his girlfriend … and millions of dollars to his wife … without reporting any of this money on his personal income tax returns. . . . [H]e siphoned off this money primarily by writing checks to employees and friends and having them return the cash to him, by diverting payments by HIE customers, by submitting fraudulent invoices to HIE, and by laundering HIE money through companies in the Kingdom of Tonga and Hong Kong.” Ibid. In defense, Boulware sought to introduce evidence that HIE had no retained or current earnings and profits in the relevant taxable years, with the consequence (he argued) that he in effect received distributions of property that must have been returns of capital, up to his basis in his stock. See §301(c)(2). Because the return of capital was nontaxable, the argument went, the Government could not establish the tax deficiency required to convict him. The Government moved in limine to bar evidence in support of Boulware’s return-of-capital theory, on the grounds of “irrelevan[ce] in [this] criminal tax case,” App. 20. The Government relied on the Ninth Circuit’s decision in United States v. Miller, 545 F. 2d 1204 (1976), in which that court held that in a criminal tax evasion case, a diversion of funds may be deemed a return of capital only after “some demonstration on the part of the taxpayer and/or the corporation that such [a distribution was] intended to be such a return,” id., at 1215. Boulware, the Government argued, had offered to make no such demonstration. App. 21. The District Court granted the Government’s motion, and when Boulware sought “to present evidence of [HIE’s] alleged over-reporting of income, and an offer of proof relating to the issue of … dividends,” id., at 135, the District Court denied his request. The court said that “[n]ot only would much of [his proffered] evidence be excludable as expert legal opinion, it is plainly insufficient under the Miller case,” id., at 138, and accordingly declined to instruct the jury on Boulware’s return-of-capital theory. The jury rejected his alternative defenses (that the diverted funds were nontaxable corporate advances or loans, or that he used the moneys for corporate purposes), and found him guilty on nine counts, four of tax evasion and five of filing a false return. The Ninth Circuit affirmed. 470 F. 3d 931 (2006). It acknowledged that “imposing an intent requirement creates a disconnect between civil and criminal liability,” but thought that under Miller, “the characterization of diverted corporate funds for civil tax purposes does not dictate their characterization for purposes of a criminal tax evasion charge.” 470 F. 3d, at 934. The court held the test in a criminal case to be “whether the defendant has willfully attempted to evade the payment or assessment of a tax.” Ibid. Because Boulware “ ‘presented no concrete proof that the amounts were considered, intended, or recorded on the corporate records as a return of capital at the time they were made,’ ” id., at 935 (quoting Miller, supra, at 1215), the Ninth Circuit held that Boulware’s proffer was “properly rejected … as inadequate,” 470 F. 3d, at 935. Judge Thomas concurred because the panel was bound by Miller, but noted that “Miller—and now the majority opinion—hold that a defendant may be criminally sanctioned for tax evasion without owing a penny in taxes to the government.” 470 F. 3d, at 938. That, he said, not only “indicate[s] a logical fallacy, but is in flat contradiction with the tax evasion statute’s requirement … of a tax deficiency.” Ibid. (internal quotation marks omitted).[Footnote 5] We granted certiorari, 551 U. S. ___ (2007), to resolve a split among the Courts of Appeals over the application of §§301 and 316(a) to informally transferred or diverted corporate funds in criminal tax proceedings.[Footnote 6] We now vacate and remand. III A The colorful behavior described in the allegations requires a reminder that tax classifications like “dividend” and “return of capital” turn on “the objective economic realities of a transaction rather than … the particular form the parties employed,” Frank Lyon Co. v. United States, 435 U. S. 561, 573 (1978); a “given result at the end of a straight path is not made a different result … by following a devious path,” Minnesota Tea Co. v. Helvering, 302 U. S. 609, 613 (1938).[Footnote 7] As for distributions with respect to stock, in economic reality a shareholder’s informal receipt of corporate property “may be as effective a means of distributing profits among stockholders as the formal declaration of a dividend,” Palmer v. Commissioner, 302 U. S. 63, 69 (1937), or as effective a means of returning a shareholder’s capital, see ibid. Accordingly, “[a] distribution to a shareholder in his capacity as such . . . is subject to §301 even though it is not declared in formal fashion.” B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders ¶8.05[1], pp. 8–36 to 8–37 (6th ed. 1999) (hereinafter Bittker & Eustice); see also Gardner, The Tax Consequences of Shareholder Diversions in Close Corporations, 21 Tax L. Rev. 223, 239 (1966) (hereinafter Gardner) (“Sections 316 and 301 do not require any formal path to be taken by a corporation in order for those provisions to apply”). There is no reason to doubt that economic substance remains the right touchstone for characterizing funds received when a shareholder diverts them before they can be recorded on the corporation’s books. While they “never even pass through the corporation’s hands,” Bittker & Eustice ¶8.05[9], p. 8–51, even diverted funds may be seen as dividends or capital distributions for purposes of §§301 and 316(a), see Truesdell v. Commissioner, 89 T. C. 1280 (1987) (treating diverted funds as “constructive” distributions in civil tax proceedings). The point, again, is that “taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed—the actual benefit for which the tax is paid.” Corliss v. Bowers, 281 U. S. 376, 378 (1930); see also Griffiths v. Commissioner, 308 U. S. 355, 358 (1939).[Footnote 8] B Miller’s view that a criminal defendant may not treat a distribution as a return of capital without evidence of a corresponding contemporaneous intent sits uncomfortably not only with the tax law’s economic realism, but with the particular wording of §§301 and 316(a), as well. As those sections are written, the tax consequences of a “distribution by a corporation with respect to its stock” depend, not on anyone’s purpose to return capital or to get it back, but on facts wholly independent of intent: whether the corporation had earnings and profits, and the amount of the taxpayer’s basis for his stock. Cf. Truesdell v. Commissioner, Internal Revenue Service (IRS) Action on Decision 1988–25, 1988 WL 570761 (Sept. 12, 1988) (recommendation regarding acquiescence); IRS Non Docketed Service Advice Review, 1989 WL 1172952 (Mar. 15, 1989) (reply to request for reconsideration) (“[I]ntent is irrelevant. . . . [E]very distribution made with respect to a shareholder’s stock is taxable as ordinary income, capital gain, or not at all pursuant to section 301(c) dependent upon the corporation’s earnings and profits and the shareholder’s stock basis. The determination is computational and not dependent upon intent”). When the Miller court went the other way, needless to say, it could claim no textual hook for the contemporaneous intent requirement, but argued for it as the way to avoid two supposed anomalies. First, the court thought that applying §§301 and 316(a) in criminal cases unnecessarily emphasizes the exact amount of deficiency while “completely ignor[ing] one essential element of the crime charged: the willful intent to evade taxes . . . .” 545 F. 2d, at 1214. But there is an analytical mistake here. Willfulness is an element of the crimes charged because the substantive provisions defining tax evasion and filing a false return expressly require it, see §7201 (“Any person who willfully attempts . . . ”); §7206(1) (“Willfully makes and subscribes . . . ”). The element of willfulness is addressed at trial by requiring the Government to prove it. Nothing in §§301 and 316(a) as written (that is, without an intent requirement) relieves the Government of this burden of proving willfulness or impedes it from doing so if evidence of willfulness is there. Those two sections as written simply address a different element of criminal evasion, the existence of a tax deficiency, and both deficiency and willfulness can be addressed straightforwardly (in jury instructions or bench findings) without tacking an intent requirement onto the rule distinguishing dividends from capital returns. Second, the Miller court worried that if a defendant could claim capital treatment without showing a corresponding and contemporaneous intent, “[a] taxpayer who diverted funds from his close corporation when it was in the midst of a financial difficulty and had no earnings and profits would be immune from punishment (to the extent of his basis in the stock) for failure to report such sums as income; while that very same taxpayer would be convicted if the corporation had experienced a successful year and had earnings and profits.” 545 F. 2d, at 1214. “Such a result,” said the court, “would constitute an extreme example of form over substance.” Ibid. The Circuit thus assumed that a taxpayer like Boulware could be convicted of evasion with no showing of deficiency from an unreported dividend or capital gain. But the acquittal that the author of Miller called form trumping substance would in fact result from the Government’s failure to prove an element of the crime. There is no criminal tax evasion without a tax deficiency, see supra, at 1–2,[Footnote 9] and there is no deficiency owing to a distribution (received with respect to a corporation’s stock) if a corporation has no earnings and profits and the value distributed does not exceed the taxpayer-shareholder’s basis for his stock. Thus the fact that a shareholder distributee of a successful corporation may have different tax liability from a shareholder of a corporation without earnings and profits merely follows from the way §§301 and 316(a) are written (to distinguish dividend from capital return), and from the requirement of tax deficiency for a §7201 crime. Without the deficiency there is nothing but some act expressing the will to evade, and, under §7201, acting on “bad intentions, alone, [is] not punishable,” United States v. D’Agostino, 145 F. 3d 69, 73 (CA2 1998). It is neither here nor there whether the Miller court was justified in thinking it would improve things to convict more of the evasively inclined by dropping the deficiency requirement and finding some other device to exempt returns of capital.[Footnote 10] Even if there were compelling reasons to extend §7201 to cases in which no taxes are owed, it bears repeating that “[t]he spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute,” Morissette v. United States, 342 U. S. 246, 263 (1952) (opinion for the Court by Jackson, J.). If §301, §316(a), or §7201 could stand amending, Congress will have to do the rewriting. C Not only is Miller devoid of the support claimed for it, but it suffers the demerit of some anomalies of its own. First and most obviously, §§301 and 316 are odd stalks for grafting a contemporaneous intent requirement, given the fact that the correct application of their rules will often become known only at the end of the corporation’s tax year, regardless of the shareholder’s or corporation’s understanding months earlier when a particular distribution may have been made. Section 316(a)(2) conditions treating a distribution as a constructive dividend by reference to earnings and profits, and earnings and profits are to be “computed as of the close of the taxable year … without regard to the amount of the earnings and profits at the time the distribution was made.” A corporation may make a deliberate distribution to a shareholder, with everyone expecting a profitable year and considering the distribution to be a dividend, only to have the shareholder end up liable for no tax if the company closes out its tax year in the red (so long as the shareholder’s basis covers the distribution); when such facts are clear at the time the reporting forms and returns are filed,[Footnote 11] the shareholder does not violate §7201 by paying no tax on the moneys received, intent being beside the point. And since intent to make a distribution a taxable one cannot control, it would be odd to condition nontaxable return-of-capital treatment on contemporaneous intent, when the statute says nothing about intent at all. The intent interpretation is strange for another reason, too (a reason in some tension with the Ninth Circuit’s assumption that an unreported distribution without contemporaneous intent to return capital will support a conviction for evasion). The text of §301(a) ostensibly provides for all variations of tax treatment of distributions received with respect to a corporation’s stock unless a separate provision of the Code requires otherwise. Yet Miller effectively converts the section into one of merely partial coverage, with the result of leaving one class of distributions in a tax status limbo in criminal cases. That is, while §301(a) expressly provides that distributions made by a corporation to a shareholder with respect to its stock “shall be treated in the manner provided in [§301(c)],” under Miller, a distribution from a corporation without earnings and profits would fail to be a return of capital for lack of contemporaneous intent to treat it that way; but to the extent that distribution did not exceed the taxpayer’s basis for the stock (and thus become a capital gain), §301(a) would leave the distribution unaccounted for. It is no answer to say that §61(a) of the Code would step in where §301(a) has been pushed out. Although §61(a) defines gross income, “[e]xcept as otherwise provided,” as “all income from whatever source derived,” the plain text of §301(a) does provide otherwise for distributions made with respect to stock. So using §61(a) as a stopgap would only sanction yet another eccentricity: §301(a) would be held not to cover what its text says it “shall” (the class of distributions made with respect to stock for which no other more specific provision is made), while §61(a) would need to be applied to what by its terms it should not be (a receipt of funds for which tax treatment is “otherwise provided” in §301(a)). The implausibility of a statutory reading that either creates a tax limbo or forces resort to an atextual stopgap is all the clearer from the Ninth Circuit’s discussion in this case of its own understanding of the consequences of Miller’s rule: the court openly acknowledged that “imposing an intent requirement creates a disconnect between civil and criminal liability,” 470 F. 3d, at 934. In construing distribution rules that draw no distinction in terms of criminal or civil consequences, the disparity of treatment assumed by the Court of Appeals counts heavily against its contemporaneous intent construction (quite apart from the Circuit’s understanding that its interpretation entails criminal liability for evasion without any showing of a tax deficiency). Miller erred in requiring a contemporaneous intent to treat the receipt of corporate funds as a return of capital, and the judgment of the Court of Appeals here, relying on Miller, is likewise erroneous. IV The Government has raised nothing that calls for affirmance in the face of the Court of Appeals’s reliance on Miller. The United States does not defend differential treatment of criminal and civil cases, see Brief for United States 24, and it thus stops short of fully defending the Ninth Circuit’s treatment. The Government’s argument, instead, is that we should affirm under the rule that before any distribution may be treated as a return of capital (or, by a parity of reasoning, a dividend), it must first be distributed to the shareholder “with respect to . . . stock.” Id., at 19 (internal quotations omitted). The taxpayer’s intent, the Government says, may be relevant to this limiting condition, and Boulware never expressly claimed any such intent. See ibid. (“[I]ntent is … relevant to whether a payment is a ‘distribution … with respect to [a corporation’s] stock’ ”); but see Tr. of Oral Arg. 44 (“[J]ust to be clear, the Government is arguing for an objective test here”). The Government is of course correct that “with respect to … stock” is a limiting condition in §301(a). See supra, at 2–3.[Footnote 12] As the Government variously says, it requires that “the distribution of property by the corporation be made to a shareholder because of his ownership of its stock,” Brief for United States 16; and that “ ‘an amount paid by a corporation to a shareholder [be] paid to the shareholder in his capacity as such,’ ” ibid. (quoting 26 CFR §1.301–1(c) (2007) (emphasis deleted)). This, however, is not the time or place to home in on the “with respect to … stock” condition. Facts with a bearing on it may range from the distribution of stock ownership[Footnote 13] to conditions of corporate employment (whether, for example, a shareholder’s efforts on behalf of a corporation amount to a good reason to treat a payment of property as salary). The facts in this case have yet to be raked over with the stock ownership condition in mind, since Miller seems to have pretermitted a full consideration of the defensive proffer, and if consideration is to be given to that condition now, the canvas of evidence and Boulware’s proffer should be made by a court familiar with the whole evidentiary record.[Footnote 14] As a more specific version of its “with respect to . . . stock” position, the Government says that the diversions of corporate funds to Boulware were in fact unlawful, see Brief for United States 34–37; see also n. 5, supra, and it argues that §§301 and 316(a) are inapplicable to illegal transfers, see Brief for United States 34–37; see also D’Agostino, 145 F. 3d, at 73 (“[T]he ‘no earnings and profits, no income’ rule would not necessarily apply in a case of unlawful diversion, such as embezzlement, theft, a violation of corporate law, or an attempt to defraud third party creditors” (emphasis in original)); see also n. 8, supra. The Government goes so far as to claim that “[t]he only rational basis for the jury’s judgment was a conclusion that [Boulware] unlawfully diverted the funds.” Brief for United States 37. But we decline to take up the question whether an unlawful diversion may ever be deemed a “distribution . . . with respect to [a corporation’s] stock,” a question which was not considered by the Ninth Circuit. We do, however, reject the Government’s current characterization of the jury verdict in Boulware’s case. True, the jurors were not moved by Boulware’s suggestion that the diversions were corporate advances or loans, or that he was using the funds for corporate purposes. But the jury was not asked, and cannot be said to have answered, whether Boulware breached any fiduciary duty as a controlling shareholder, unlawfully diverted corporate funds to defraud his wife, or embezzled HIE’s funds outright. V Sections §§301 and 316(a) govern the tax consequences of constructive distributions made by a corporation to a shareholder with respect to its stock. A defendant in a criminal tax case does not need to show a contemporaneous intent to treat diversions as returns of capital before relying on those sections to demonstrate no taxes are owed. 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. Footnote 1 A related provision, 26 U. S. C. §7206(1), criminalizes the willful filing of a tax return believed to be materially false. See n. 9, infra. Footnote 2 “[T]he elements of §7201 are willfulness[,] the existence of a tax deficiency, . . . and an affirmative act constituting an evasion or attempted evasion of the tax.” Sansone v. United States, 380 U. S. 343, 351 (1965). The Courts of Appeals have divided over whether the Government must prove the tax deficiency is “substantial,” see United States v. Daniels, 387 F. 3d 636, 640–641, and n. 2 (CA7 2004) (collecting cases); we do not address that issue here. Footnote 3 Although the Code does not “comprehensively define ‘earnings and profits,’ ” 4 B. Bittker & L. Lokken, Federal Taxation of Income, Estates and Gifts ¶92.1.3, p.92–6 (3d ed. 2003) (hereinafter Bittker & Lokken), the “[p]rovisions of the Code and regulations relating to earnings and profits ordinarily take taxable income as the point of departure,” id., at 92–9. Footnote 4 The trial at issue in this case was actually Boulware’s second trial on §§7201 and 7206(1) charges, his convictions on those counts in an earlier trial having been vacated by the Ninth Circuit for reasons not at issue here, see 384 F. 3d 794 (2004). In that earlier trial, Boulware was also convicted of conspiracy to make false statements to a federally insured financial institution, in violation of 18 U. S. C. §371. The Ninth Circuit affirmed Boulware’s conspiracy conviction that first time around, however, so the present trial did not include a conspiracy charge. Footnote 5 Judge Thomas went on to say that the Government would prevail even without Miller’s rule because, in his view, Boulware’s diversions were “unlawful,” and the return-of-capital rules would not apply to diversions made for unlawful purposes. See 470 F. 3d, at 938–939. Footnote 6 As noted, the Ninth Circuit holds that §§301 and 316(a) are not to be consulted in a criminal tax evasion case until the defendant produces evidence of an intent to treat diverted funds as a return of capital at the time it was made. See 470 F. 3d 931 (2006) (case below). By contrast, the Second Circuit allows a criminal defendant to invoke §§301 and 316(a) without evidence of a contemporaneous intent to treat such moneys as returns of capital. See United States v. Bok, 156 F. 3d 157, 162 (1998) (“[I]n return of capital cases, a taxpayer’s intent is not determinative in defining the taxpayer’s conduct”). Meanwhile, the Third, Sixth, and Eleventh Circuits arguably have taken the position that §§301 and 316(a) are altogether inapplicable in criminal tax cases involving informal distributions. See United States v. Williams, 875 F. 2d 846, 850–852 (CA11 1989); United States v. Goldberg, 330 F. 2d 30, 38 (CA3 1964); Davis v. United States, 226 F. 2d 331, 334–335 (CA6 1955); but see Brief for Petitioner 16 (“[T]hese cases can be read to address the allocation of the burden of proof on the return of capital issue, rather than the applicable substantive principles”). Footnote 7 We have also recognized that “[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U. S. 465, 469 (1935). The rule is a two-way street: “while a taxpayer is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice, whether contemplated or not, . . . and may not enjoy the benefit of some other route he might have chosen to follow but did not,” Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U. S. 134, 149 (1974); see also id., at 148 (referring to “the established tax principle that a transaction is to be given its tax effect in accord with what actually occurred and not in accord with what might have occurred”); Founders Gen. Corp. v. Hoey, 300 U. S. 268, 275 (1937) (“To make the taxability of the transaction depend upon the determination whether there existed an alternative form which the statute did not tax would create burden and uncertainty”). The question here, of course, is not whether alternative routes may have offered better or worse tax consequences, see generally Isenbergh, Review: Musings on Form and Substance in Taxation, 49 U. Chi. L. Rev. 859 (1982); rather, it is “whether what was done … was the thing which the statute[, here §§301 and 316(a),] intended,” Gregory, supra, at 469. Footnote 8 Thus in the period between this Court’s decisions in Commissioner v. Wilcox, 327 U. S. 404 (1946) (holding embezzled funds to be nontaxable to the embezzler) and James v. United States, 366 U. S. 213 (1961) (overruling Wilcox, holding embezzled funds to be taxable income), the Government routinely argued that diverted funds were “constructive distributions,” taxable to the recipient as dividends. See generally Gardner 237 (“While Wilcox was good law, the safest way to insure that both the corporation and the shareholder would be taxed on their respective gain from the diverted funds was to label them dividends”); 4 Bittker & Lokken ¶92.2(7), p. 92–23, n. 37. Footnote 9 Boulware was also convicted of violating §7206(1), which makes it a felony “[w]illfully [to] mak[e] and subscrib[e] any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which [the taxpayer] does not believe to be true and correct as to every material matter.” He argues that if the Ninth Circuit erred, its error calls into question not only his §7201 conviction, but his §7206(1) conviction as well. Brief for Petitioner 15–16. Although the Courts of Appeals are unanimous in holding that §7206(1) “does not require the prosecution to prove the existence of a tax deficiency,” United States v. Tarwater, 308 F. 3d 494, 504 (CA6 2002); see also United States v. Peters, 153 F. 3d 445, 461 (CA7 1998) (collecting cases), it is arguable that “the nature and character of the funds received can be critical in determining whether . . . §7206(1) has been violated, [even if] proof of a tax deficiency is unnecessary,” 1 I. Comisky, L. Feld, & S. Harris, Tax Fraud & Evasion ¶2.03[5], p. 21 (2007); see also Brief for Petitioner 15–16. The Government does not argue that Boulware’s §§7201 and 7206(1) convictions should be treated differently at this stage of the proceedings, however, and we will accede to the Government’s working assumption here that the §§7201 and 7206(1) convictions stand or fall together. Footnote 10 “A better [method of exempting returns of capital from taxation] could no doubt be devised.” 4 Bittker & Lokken ¶92.1.1, p. 92–3; see ibid. (suggesting, for example, that “all receipts from a corporation could be treated as taxable income, and a correction for any resulting overtaxation could be made in computing gain or loss when stock is sold, exchanged, or becomes worthless”); see also Andrews, “Out of its Earnings and Profits”: Some Reflections on the Taxation of Dividends, 69 Harv. L. Rev. 1403, 1439 (1956) (criticizing the earnings and profits concept “[a]s a device for separating income from return of capital,” and suggesting that “[d]istributions which ought to be treated as return of capital [could] be brought within the concept of a partial liquidation by special provision”). Footnote 11 Sometimes these facts are not clear, and in certain circumstances a corporation may be required to assume it is profitable. For ex- ample, the instructions to IRS Form 1099–DIV provide that when a corporation is unsure whether it has sufficient earnings and profits at the end of the taxable year to cover a distribution to shareholders, “the entire payment must be reported as a dividend.” See http://www.irs.gov/pub/irs-pdf/i1099div.pdf (as visited Feb. 15, 2008, and available in Clerk of Court’s case file). Footnote 12 Another limiting condition is that the diversion of funds must be a “distribution” in the first place (regardless of the “with respect to stock” limitation), see supra, at 6–8, though the Government is content to assume that §301(a)’s “distribution” language is capacious enough to cover the diversions involved here, and that if Boulware bears the burden of production in going forward with the defense that the funds he received constituted a “distribution” within the meaning of §301(a), see n. 14, infra, that burden has been met. Nor does the Government dispute that Boulware offered sufficient evidence of his basis and HIE’s lack of earnings and profits. See Brief for United States 34, n. 11. Footnote 13 See, e.g., Truesdell v. Commissioner, IRS Non Docketed Service Advice Review, 1989 WL 1172952 (Mar. 15, 1989) (“We believe a corporation and its shareholders have a common objective—to earn a profit for the corporation to pass onto its shareholders. Especially where the corporation is wholly owned by one shareholder, the corporation becomes the alter ego of the shareholder in his profit making capacity. . . . [B]y passing corporate funds to himself as shareholder, a sole shareholder is acting in pursuit of these common objectives”). We note, however, that although Boulware was not a sole shareholder, the Tax Court has taken it as “well settled that a distribution of corporate earnings to shareholders may constitute a dividend,” and so a return of capital as well, “notwithstanding that it is not in proportion to stockholdings.” Dellinger v. Commissioner, 32 T. C. 1178, 1183 (1959); see ibid. (noting that because other stockholders did not complain when a taxpayer received unequal property, “under the circumstances they must be deemed to have ratified the distribution”); see also Crowley v. Comissioner, 962 F. 2d 1077 (CA1 1992); Lengsfield v. Commissioner, 241 F. 2d 508 (CA5 1957); Baird v. Commissioner, 25 T. C. 387 (1955); Thielking v. Commissioner, 53 TCM 746 (1987), ¶87, 227, P–H Memo TC. Footnote 14 Boulware does not dispute that he bears the burden of producing some evidence to support his return-of-capital theory, including evidence that the corporation lacked earnings and profits and that he had sufficient basis in his stock to cover the distribution. See Tr. of Oral Arg. 53. He instead argues that, as to the “with respect to … stock” requirement, it suffices to show “[t]hat he is a stockholder, and that he did not receive this money in any nonstockholder capacity.” Id., at 57. The Government, for its part, on the authority of Holland v. United States, 348 U. S. 121 (1954) and Bok, 156 F. 3d, at 163–164, argues that Boulware must offer more evidence than that. We express no view on that issue here, just as we decline to consider the more general question whether the Second Circuit’s rule in Bok, which places on the criminal defendant the burden to produce evidence in support of a return-of-capital theory, is authorized by Holland and consistent with Sandstrom v. Montana, 442 U. S. 510 (1979), and related cases.
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553.US.723
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In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those … he determines planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.” Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. In the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights. While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to … consider … an application for … habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any other action against the United States … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained … since September 11, 2001.” The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas. Held: 1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition, “relate to … detention” within that section’s meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of action “relating to any aspect of … detention,” etc., pending habeas actions are in the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8. 2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8–41. (a) A brief account of the writ’s history and origins shows that protection for the habeas privilege was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the history that influenced their design, inform the Clause’s reach and purpose. Pp. 8–15. (b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department’s in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The evidence as to the writ’s geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that the site of their detention is analogous to two territories outside England to which the common-law writ ran, the exempt jurisdictions and India, but critical differences between these places and Guantanamo render these claims unpersuasive. The Government argues that Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not run, but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from doing so for prudential reasons. The parties’ arguments that the very lack of a precedent on point supports their respective positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before the Court. Pp. 15–22. (c) The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42. (i) The Court does not question the Government’s position that Cuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government’s premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-law habeas’ history provides scant support for this proposition, and it is inconsistent with the Court’s precedents and contrary to fundamental separation-of-powers principles. Pp. 22–25. (ii) Discussions of the Constitution’s extraterritorial application in cases involving provisions other than the Suspension Clause undermine the Government’s argument. Fundamental questions regarding the Constitution’s geographic scope first arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of the difficulties and disruption inherent in transforming the former Spanish colonies’ civil-law system into an Anglo-American system, the Court adopted the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See, e.g., id., at 143. Practical considerations likewise influenced the Court’s analysis in Reid v. Covert, 354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American civilians being tried by the U. S. military abroad, both the plurality and the concurrences noted the relevance of practical considerations, related not to the petitioners’ citizenship, but to the place of their confinement and trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during the Allied Powers’ post-World War II occupation, the Court, in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at 779. The Government’s reading of Eisentrager as adopting a formalistic test for determining the Suspension Clause’s reach is rejected because: (1) the discussion of practical considerations in that case was integral to a part of the Court’s opinion that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereignty only twice in its opinion, in contrast to its significant discussion of practical barriers to the running of the writ; and (3) if the Government’s reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases’ (and later Reid’s) functional approach. A constricted reading of Eisentrager overlooks what the Court sees as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical concerns, not formalism. Pp. 25–34. (iii) The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension Clause question here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers. Pp. 34–36. (iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. Pp. 36–41. (d) Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied them, Congress must act in accordance with the Suspension Clause’s requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41–42. 3. Because the DTA’s procedures for reviewing detainees’ status are not an adequate and effective substitute for the habeas writ, MCA §7 operates as an unconstitutional suspension of the writ. Pp. 42–64. (a) Given its holding that the writ does not run to petitioners, the D. C. Circuit found it unnecessary to consider whether there was an adequate substitute for habeas. This Court usually remands for consideration of questions not decided below, but departure from this rule is appropriate in “exceptional” circumstances, see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the grave separation-of-powers issues raised by these cases and the fact that petitioners have been denied meaningful access to a judicial forum for years. Pp. 42–44. (b) Historically, Congress has taken care to avoid suspensions of the writ. For example, the statutes at issue in the Court’s two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U. S. 205, were attempts to streamline habeas relief, not to cut it back. Those cases provide little guidance here because, inter alia, the statutes in question gave the courts broad remedial powers to secure the historic office of the writ, and included saving clauses to preserve habeas review as an avenue of last resort. In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7’s jurisdiction-stripping language, from the DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either Act. That Congress intended to create a more limited procedure is also confirmed by the legislative history and by a comparison of the DTA and the habeas statute that would govern in MCA §7’s absence, 28 U. S. C. §2241. In §2241, Congress authorized “any justice” or “circuit judge” to issue the writ, thereby accommodating the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court. See §2241(b). However, by granting the D. C. Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), Congress has foreclosed that option in these cases. Pp. 44–49. (c) This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute. It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289, 302, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. But more may be required depending on the circumstances. Petitioners identify what they see as myriad deficiencies in the CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case, does not have the assistance of counsel, and may not be aware of the most critical allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay. The Court therefore agrees with petitioners that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly, for the habeas writ, or its substitute, to function as an effective and meaningful remedy in this context, the court conducting the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. In re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23–25, distinguished. Pp. 49–57. (d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64. 4. Nor are there prudential barriers to habeas review. Pp. 64–70. (a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a chance to review his status. Pp. 64–67. (b) In effectuating today’s holding, certain accommodations—including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate interest in protecting sources and intelligence gathering methods—should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections. Pp. 67–68. 5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. Pp. 68–70. 476 F. 3d 981, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined. * Together with No. 06–1196, Al Odah, Next Friend of Al Odah, et al. v. United States et al., also on certiorari to the same court.
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Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. There are others detained there, also aliens, who are not parties to this suit. Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court. I Under the Authorization for Use of Military Force (AUMF), §2(a), 115 Stat. 224, note following 50 U. S. C. §1541 (2000 ed., Supp. V), the President is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan “for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Id., at 518 (plurality opinion of O’Connor, J.), id., at 588–589 (Thomas, J., dissenting). After Hamdi, the Deputy Secretary of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at Guantanamo were “enemy combatants,” as the Department defines that term. See App. to Pet. for Cert. in No. 06–1195, p. 81a. A later memorandum established procedures to implement the CSRTs. See App. to Pet. for Cert. in No. 06–1196, p. 147. The Government maintains these procedures were designed to comply with the due process requirements identified by the plurality in Hamdi. See Brief for Respondents 10. Interpreting the AUMF, the Department of Defense ordered the detention of these petitioners, and they were transferred to Guantanamo. Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime that provided sanctuary for al Qaeda. Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia. The first actions commenced in February 2002. The District Court ordered the cases dismissed for lack of jurisdiction because the naval station is outside the sovereign territory of the United States. See Rasul v. Bush, 215 F. Supp. 2d 55 (2002). The Court of Appeals for the District of Columbia Circuit affirmed. See Al Odah v. United States, 321 F. 3d 1134, 1145 (2003). We granted certiorari and reversed, holding that 28 U. S. C. §2241 extended statutory habeas corpus jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitutional issue presented in the instant cases was not reached in Rasul. Id., at 476. After Rasul, petitioners’ cases were consolidated and entertained in two separate proceedings. In the first set of cases, Judge Richard J. Leon granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas corpus action. In the second set of cases Judge Joyce Hens Green reached the opposite conclusion, holding the detainees had rights under the Due Process Clause of the Fifth Amendment. See Khalid v. Bush, 355 F. Supp. 2d 311, 314 (DC 2005); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (DC 2005). While appeals were pending from the District Court decisions, Congress passed the DTA. Subsection (e) of §1005 of the DTA amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to hear or consider … an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” 119 Stat. 2742. Section 1005 further provides that the Court of Appeals for the District of Columbia Circuit shall have “exclusive” jurisdiction to review decisions of the CSRTs. Ibid. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577 (2006), the Court held this provision did not apply to cases (like petitioners’) pending when the DTA was enacted. Congress responded by passing the MCA, 10 U. S. C. A. §948a et seq. (Supp. 2007), which again amended §2241. The text of the statutory amendment is discussed below. See Part II, infra. (Four Members of the Hamdan majority noted that “[n]othing prevent[ed] the President from returning to Congress to seek the authority he believes necessary.” 548 U. S., at 636 (Breyer, J., concurring). The authority to which the concurring opinion referred was the authority to “create military commissions of the kind at issue” in the case. Ibid. Nothing in that opinion can be construed as an invitation for Congress to suspend the writ.) Petitioners’ cases were consolidated on appeal, and the parties filed supplemental briefs in light of our decision in Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981 (CADC 2007), is the subject of our present review and today’s decision. The Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas corpus applications, id., at 987; that petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause, id., at 990–991; and, as a result, that it was unnecessary to consider whether Congress provided an adequate and effective substitute for habeas corpus in the DTA. We granted certiorari. 551 U. S. ___ (2007). II As a threshold matter, we must decide whether MCA §7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed. As amended by the terms of the MCA, 28 U. S. C. A. §2241(e) (Supp. 2007) now provides: “(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. “(2) Except as provided in [§§1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Section 7(b) of the MCA provides the effective date for the amendment of §2241(e). It states: “The amendment made by [MCA §7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” 120 Stat. 2636. There is little doubt that the effective date provision applies to habeas corpus actions. Those actions, by definition, are cases “which relate to … detention.” See Black’s Law Dictionary 728 (8th ed. 2004) (defining habeas corpus as “[a] writ employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal”). Petitioners argue, nevertheless, that MCA §7(b) is not a sufficiently clear statement of congressional intent to strip the federal courts of jurisdiction in pending cases. See Ex parte Yerger, 8 Wall. 85, 102–103 (1869). We disagree. Their argument is as follows: Section 2241(e)(1) refers to “a writ of habeas corpus.” The next paragraph, §2241(e)(2), refers to “any other action … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who … [has] been properly detained as an enemy combatant or is awaiting such determination.” There are two separate paragraphs, the argument continues, so there must be two distinct classes of cases. And the effective date subsection, MCA §7(b), it is said, refers only to the second class of cases, for it largely repeats the language of §2241(e)(2) by referring to “cases … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States.” Petitioners’ textual argument would have more force were it not for the phrase “other action” in §2241(e)(2). The phrase cannot be understood without referring back to the paragraph that precedes it, §2241(e)(1), which explicitly mentions the term “writ of habeas corpus.” The structure of the two paragraphs implies that habeas actions are a type of action “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained … as an enemy combatant.” Pending habeas actions, then, are in the category of cases subject to the statute’s jurisdictional bar. We acknowledge, moreover, the litigation history that prompted Congress to enact the MCA. In Hamdan the Court found it unnecessary to address the petitioner’s Suspension Clause arguments but noted the relevance of the clear statement rule in deciding whether Congress intended to reach pending habeas corpus cases. See 548 U. S., at 575 (Congress should “not be presumed to have effected such denial [of habeas relief] absent an unmistakably clear statement to the contrary”). This interpretive rule facilitates a dialogue between Congress and the Court. Cf. Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1209–1210 (W. Eskridge & P. Frickey eds. 1994). If the Court invokes a clear statement rule to advise that certain statutory interpretations are favored in order to avoid constitutional difficulties, Congress can make an informed legislative choice either to amend the statute or to retain its existing text. If Congress amends, its intent must be respected even if a difficult constitutional question is presented. The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one; and the Judiciary, in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in a proper case. If this ongoing dialogue between and among the branches of Government is to be respected, we cannot ignore that the MCA was a direct response to Hamdan’s holding that the DTA’s jurisdiction-stripping provision had no application to pending cases. The Court of Appeals was correct to take note of the legislative history when construing the statute, see 476 F. 3d, at 986, n. 2 (citing relevant floor statements); and we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us. III In deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status, i.e., petitioners’ designation by the Executive Branch as enemy combatants, or their physical location, i.e., their presence at Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation’s borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause. We begin with a brief account of the history and origins of the writ. Our account proceeds from two propositions. First, protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases. A The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system. Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Art. 39, in Sources of Our Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land”). Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. Holdsworth tells us, however, that gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled. 9 W. Holdsworth, A History of English Law 112 (1926) (hereinafter Holdsworth). The development was painstaking, even by the centuries-long measures of English constitutional history. The writ was known and used in some form at least as early as the reign of Edward I. Id., at 108–125. Yet at the outset it was used to protect not the rights of citizens but those of the King and his courts. The early courts were considered agents of the Crown, designed to assist the King in the exercise of his power. See J. Baker, An Introduction to English Legal History 38–39 (4th ed. 2002). Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. See Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. (forthcoming 2008) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)). Over time it became clear that by issuing the writ of habeas corpus common-law courts sought to enforce the King’s prerogative to inquire into the authority of a jailer to hold a prisoner. See M. Hale, Prerogatives of the King 229 (D. Yale ed. 1976); 2 J. Story, Commentaries on the Constitution of the United States §1341, p. 237 (3d ed. 1858) (noting that the writ ran “into all parts of the king’s dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained”). Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.” 1 F. Pollock & F. Maitland, History of English Law 173 (2d ed. 1909); see also 2 Bracton On the Laws and Customs of England 33 (S. Thorne transl. 1968) (“The king must not be under man but under God and under the law, because law makes the king”). And, by the 1600’s, the writ was deemed less an instrument of the King’s power and more a restraint upon it. See Collings, Habeas Corpus for Convicts—Constitutional Right or Legislative Grace, 40 Calif. L. Rev. 335, 336 (1952) (noting that by this point the writ was “the appropriate process for checking illegal imprisonment by public officials”). Still, the writ proved to be an imperfect check. Even when the importance of the writ was well understood in England, habeas relief often was denied by the courts or suspended by Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them. A notable example from this period was Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627). The events giving rise to the case began when, in a display of the Stuart penchant for authoritarian excess, Charles I demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The prisoners sought a writ of habeas corpus; and the King filed a return in the form of a warrant signed by the Attorney General. Ibid. The court held this was a sufficient answer and justified the subjects’ continued imprisonment. Id., at 59. There was an immediate outcry of protest. The House of Commons promptly passed the Petition of Right, 3 Car. 1, ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963), which condemned executive “imprison[ment] without any cause” shown, and declared that “no freeman in any such manner as is before mencioned [shall] be imprisoned or deteined.” Yet a full legislative response was long delayed. The King soon began to abuse his authority again, and Parliament was dissolved. See W. Hall & R. Albion, A History of England and the British Empire 328 (3d ed. 1953) (hereinafter Hall & Albion). When Parliament reconvened in 1640, it sought to secure access to the writ by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of the Realm, at 110, expressly authorized use of the writ to test the legality of commitment by command or warrant of the King or the Privy Council. Civil strife and the Interregnum soon followed, and not until 1679 did Parliament try once more to secure the writ, this time through the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935. The Act, which later would be described by Blackstone as the “stable bulwark of our liberties,” 1 W. Blackstone, Commentaries *137 (hereinafter Blackstone), established procedures for issuing the writ; and it was the model upon which the habeas statutes of the 13 American Colonies were based, see Collings, supra, at 338–339. This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. See Loving v. United States, 517 U. S. 748, 756 (1996) (noting that “[e]ven before the birth of this country, separation of powers was known to be a defense against tyranny”); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) (“[T]he Constitution diffuses power the better to secure liberty”); Clinton v. City of New York, 524 U. S. 417, 450 (1998) (Kennedy, J., concurring) (“Liberty is always at stake when one or more of the branches seek to transgress the separation of powers”). Because the Constitution’s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins, 118 U. S. 356, 374 (1886), protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e.g., INS v. Chadha, 462 U. S. 919, 958–959 (1983). That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2; see Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1509, n. 329 (1987) (“[T]he non-suspension clause is the original Constitution’s most explicit reference to remedies”). The word “privilege” was used, perhaps, to avoid mentioning some rights to the exclusion of others. (Indeed, the only mention of the term “right” in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors. See Art. I, §8, cl. 8.) Surviving accounts of the ratification debates provide additional evidence that the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme. In a critical exchange with Patrick Henry at the Virginia ratifying convention Edmund Randolph referred to the Suspension Clause as an “exception” to the “power given to Congress to regulate courts.” See 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 460–464 (J. Elliot 2d ed. 1876) (hereinafter Elliot’s Debates). A resolution passed by the New York ratifying convention made clear its understanding that the Clause not only protects against arbitrary suspensions of the writ but also guarantees an affirmative right to judicial inquiry into the causes of detention. See Resolution of the New York Ratifying Convention (July 26, 1788), in 1 Elliot’s Debates 328 (noting the convention’s understanding “[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus”). Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84: “[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone … are well worthy of recital: ‘To bereave a man of life … or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the bulwark of the British Constitution.’ ” C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136, 4 id., at *438). Post-1789 habeas developments in England, though not bearing upon the Framers’ intent, do verify their foresight. Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. Just as the writ had been vulnerable to executive and parliamentary encroachment on both sides of the Atlantic before the American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended with frequency in England during times of political unrest after 1789. Parliament suspended the writ for much of the period from 1792 to 1801, resulting in rampant arbitrary imprisonment. See Hall & Albion 550. Even as late as World War I, at least one prominent English jurist complained that the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch. 29(1)(a), effectively had suspended the privilege of habeas corpus for any person suspected of “communicating with the enemy.” See King v. Halliday, [1917] A. C. 260, 299 (Lord Shaw, dissenting); see generally A. Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain 6–7, 24–25 (1992). In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. See Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody”); cf. In re Jackson, 15 Mich. 417, 439–440 (1867) (Cooley, J., concurring) (“The important fact to be observed in regard to the mode of procedure upon this [habeas] writ is, that it is directed to, and served upon, not the person confined, but his jailer”). The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause. B The broad historical narrative of the writ and its function is central to our analysis, but we seek guidance as well from founding-era authorities addressing the specific question before us: whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection. The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ. See INS v. St. Cyr, 533 U. S. 289, 300–301 (2001). But the analysis may begin with precedents as of 1789, for the Court has said that “at the absolute minimum” the Clause protects the writ as it existed when the Constitution was drafted and ratified. Id., at 301. To support their arguments, the parties in these cases have examined historical sources to construct a view of the common-law writ as it existed in 1789—as have amici whose expertise in legal history the Court has relied upon in the past. See Brief for Legal Historians as Amici Curiae; see also St. Cyr, supra, at 302, n. 16. The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. See Brief for Respondents 27. Petitioners argue that jurisdiction followed the King’s officers. See Brief for Petitioner Boumediene et al. 11. Diligent search by all parties reveals no certain conclusions. In none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. We know that at common law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief. See, e.g., Sommersett’s Case, 20 How. St. Tr. 1, 80–82 (1772) (ordering an African slave freed upon finding the custodian’s return insufficient); see generally Khera v. Secretary of State for the Home Dept., [1984] A. C. 74, 111 (“Habeas corpus protection is often expressed as limited to ‘British subjects.’ Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic ‘no’ to the question”). We know as well that common-law courts entertained habeas petitions brought by enemy aliens detained in England—“entertained” at least in the sense that the courts held hearings to determine the threshold question of entitlement to the writ. See Case of Three Spanish Sailors, 2 Black. W. 1324, 96 Eng. Rep. 775 (C. P. 1779); King v. Schiever, 2 Burr. 765, 97 Eng. Rep. 551 (K. B. 1759); Du Castro’s Case, Fort. 195, 92 Eng. Rep. 816 (K. B. 1697). In Schiever and the Spanish Sailors’ case, the courts denied relief to the petitioners. Whether the holdings in these cases were jurisdictional or based upon the courts’ ruling that the petitioners were detained lawfully as prisoners of war is unclear. See Spanish Sailors, supra, at 1324, 96 Eng. Rep., at 776; Schiever, supra, at 766, 97 Eng. Rep., at 552. In Du Castro’s Case, the court granted relief, but that case is not analogous to petitioners’ because the prisoner there appears to have been detained in England. See Halliday & White 27, n. 72. To the extent these authorities suggest the common-law courts abstained altogether from matters involving prisoners of war, there was greater justification for doing so in the context of declared wars with other nation states. Judicial intervention might have complicated the military’s ability to negotiate exchange of prisoners with the enemy, a wartime practice well known to the Framers. See Resolution of Mar. 30, 1778, 10 Journals of the Continental Congress 1774–1789, p. 295 (W. Ford ed. 1908) (directing General Washington not to exchange prisoners with the British unless the enemy agreed to exempt citizens from capture). We find the evidence as to the geographic scope of the writ at common law informative, but, again, not dispositive. Petitioners argue the site of their detention is analogous to two territories outside of England to which the writ did run: the so-called “exempt jurisdictions,” like the Channel Islands; and (in former times) India. There are critical differences between these places and Guantanamo, however. As the Court noted in Rasul, 542 U. S., at 481–482, and nn. 11–12, common-law courts granted habeas corpus relief to prisoners detained in the exempt jurisdictions. But these areas, while not in theory part of the realm of England, were nonetheless under the Crown’s control. See 2 H. Hallam, Constitutional History of England: From the Accession of Henry VII to the Death of George II, pp. 232–233 (reprint 1989). And there is some indication that these jurisdictions were considered sovereign territory. King v. Cowle, 2 Burr. 834, 854, 855, 97 Eng. Rep. 587, 599 (K. B. 1759) (describing one of the exempt jurisdictions, Berwick-upon-Tweed, as under the “sovereign jurisdiction” and “subjection of the Crown of England”). Because the United States does not maintain formal sovereignty over Guantanamo Bay, see Part IV, infra, the naval station there and the exempt jurisdictions discussed in the English authorities are not similarly situated. Petitioners and their amici further rely on cases in which British courts in India granted writs of habeas corpus to noncitizens detained in territory over which the Moghul Emperor retained formal sovereignty and control. See supra, at 12–13; Brief for Legal Historians as Amici Curiae 12–13. The analogy to the present cases breaks down, however, because of the geographic location of the courts in the Indian example. The Supreme Court of Judicature (the British Court) sat in Calcutta; but no federal court sits at Guantanamo. The Supreme Court of Judicature was, moreover, a special court set up by Parliament to monitor certain conduct during the British Raj. See Regulating Act of 1773, 13 Geo. 3, §§13–14. That it had the power to issue the writ in nonsovereign territory does not prove that common-law courts sitting in England had the same power. If petitioners were to have the better of the argument on this point, we would need some demonstration of a consistent practice of common-law courts sitting in England and entertaining petitions brought by alien prisoners detained abroad. We find little support for this conclusion. The Government argues, in turn, that Guantanamo is more closely analogous to Scotland and Hanover, territories that were not part of England but nonetheless controlled by the English monarch (in his separate capacities as King of Scotland and Elector of Hanover). See Cowle, 2 Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be cited for the proposition that, at the time of the founding, English courts lacked the “power” to issue the writ to Scotland and Hanover, territories Lord Mansfield referred to as “foreign.” Ibid. But what matters for our purposes is why common-law courts lacked this power. Given the English Crown’s delicate and complicated relationships with Scotland and Hanover in the 1700’s, we cannot disregard the possibility that the common-law courts’ refusal to issue the writ to these places was motivated not by formal legal constructs but by what we would think of as prudential concerns. This appears to have been the case with regard to other British territories where the writ did not run. See 2 R. Chambers, A Course of Lectures on English Law 1767–1773, p. 8 (T. Curley ed. 1986) (quoting the view of Lord Mansfield in Cowle that “[n]otwithstanding the power which the judges have, yet where they cannot judge of the cause, or give relief upon it, they would not think proper to interpose; and therefore in the case of imprisonments in Guernsey, Jersey, Minorca, or the plantations, the most usual way is to complain to the king in Council” (internal quotation marks omitted)). And after the Act of Union in 1707, through which the kingdoms of England and Scotland were merged politically, Queen Anne and her successors, in their new capacity as sovereign of Great Britain, ruled the entire island as one kingdom. Accordingly, by the time Lord Mansfield penned his opinion in Cowle in 1759, Scotland was no longer a “foreign” country vis-À-vis England—at least not in the sense in which Cuba is a foreign country vis-À-vis the United States. Scotland remained “foreign” in Lord Mansfield’s day in at least one important respect, however. Even after the Act of Union, Scotland (like Hanover) continued to maintain its own laws and court system. See 1 Blackstone *98, *109. Under these circumstances prudential considerations would have weighed heavily when courts sitting in England received habeas petitions from Scotland or the Electorate. Common-law decisions withholding the writ from prisoners detained in these places easily could be explained as efforts to avoid either or both of two embarrassments: conflict with the judgments of another court of competent jurisdiction; or the practical inability, by reason of distance, of the English courts to enforce their judgments outside their territorial jurisdiction. Cf. Munaf v. Geren, ante, at 15 (opinion of the Court) (recognizing that “ ‘prudential concerns’ … such as comity and the orderly administration of criminal justice” affect the appropriate exercise of habeas jurisdiction). By the mid-19th century, British courts could issue the writ to Canada, notwithstanding the fact that Canadian courts also had the power to do so. See 9 Holdsworth 124 (citing Ex parte Anderson, 3 El. and El. 487 (1861)). This might be seen as evidence that the existence of a separate court system was no barrier to the running of the common-law writ. The Canada of the 1800’s, however, was in many respects more analogous to the exempt jurisdictions or to Ireland, where the writ ran, than to Scotland or Hanover in the 1700’s, where it did not. Unlike Scotland and Hanover, Canada followed English law. See B. Laskin, The British Tradition in Canadian Law 50–51 (1969). In the end a categorical or formal conception of sovereignty does not provide a comprehensive or altogether satisfactory explanation for the general understanding that prevailed when Lord Mansfield considered issuance of the writ outside England. In 1759 the writ did not run to Scotland but did run to Ireland, even though, at that point, Scotland and England had merged under the rule of a single sovereign, whereas the Crowns of Great Britain and Ireland remained separate (at least in theory). See Cowle, supra, at 856–857, 97 Eng. Rep., 600; 1 Blackstone *100–101. But there was at least one major difference between Scotland’s and Ireland’s relationship with England during this period that might explain why the writ ran to Ireland but not to Scotland. English law did not generally apply in Scotland (even after the Act of Union) but it did apply in Ireland. Blackstone put it as follows: “[A]s Scotland and England are now one and the same kingdom, and yet differ in their municipal laws; so England and Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws.” Id., at *100. This distinction, and not formal notions of sovereignty, may well explain why the writ did not run to Scotland (and Hanover) but would run to Ireland. The prudential barriers that may have prevented the English courts from issuing the writ to Scotland and Hanover are not relevant here. We have no reason to believe an order from a federal court would be disobeyed at Guantanamo. No Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station. The modern-day relations between the United States and Guantanamo thus differ in important respects from the 18th-century relations between England and the kingdoms of Scotland and Hanover. This is reason enough for us to discount the relevance of the Government’s analogy. Each side in the present matter argues that the very lack of a precedent on point supports its position. The Government points out there is no evidence that a court sitting in England granted habeas relief to an enemy alien detained abroad; petitioners respond there is no evidence that a court refused to do so for lack of jurisdiction. Both arguments are premised, however, upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. Recent scholarship points to the inherent shortcomings in the historical record. See Halliday & White 14–15 (noting that most reports of 18th-century habeas proceedings were not printed). And given the unique status of Guantanamo Bay and the particular dangers of terrorism in the modern age, the common-law courts simply may not have confronted cases with close parallels to this one. We decline, therefore, to infer too much, one way or the other, from the lack of historical evidence on point. Cf. Brown v. Board of Education, 347 U. S. 483, 489 (1954) (noting evidence concerning the circumstances surrounding the adoption of the Fourteenth Amendment, discussed in the parties’ briefs and uncovered through the Court’s own investigation, “convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive”); Reid v. Covert, 354 U. S. 1, 64 (1957) (Frankfurter, J., concurring in result) (arguing constitutional adjudication should not be based upon evidence that is “too episodic, too meager, to form a solid basis in history, preceding and contemporaneous with the framing of the Constitution”). IV Drawing from its position that at common law the writ ran only to territories over which the Crown was sovereign, the Government says the Suspension Clause affords petitioners no rights because the United States does not claim sovereignty over the place of detention. Guantanamo Bay is not formally part of the United States. See DTA §1005(g), 119 Stat. 2743. And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.” See Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418 (hereinafter 1903 Lease Agreement); Rasul, 542 U. S., at 471. Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base. See Treaty Defining Relations with Cuba, May 29, 1934, U. S.-Cuba, Art. III, 48 Stat. 1683, T. S. No. 866. The United States contends, nevertheless, that Guantanamo is not within its sovereign control. This was the Government’s position well before the events of September 11, 2001. See, e.g., Brief for Petitioners in Sale v. Haitian Centers Council, Inc., O. T. 1992, No. 92–344, p. 31 (arguing that Guantanamo is territory “outside the United States”). And in other contexts the Court has held that questions of sovereignty are for the political branches to decide. See Vermilya-Brown Co. v. Connell, 335 U. S. 377, 380 (1948) (“[D]etermination of sovereignty over an area is for the legislative and executive departments”); see also Jones v. United States, 137 U. S. 202 (1890); Williams v. Suffolk Ins. Co., 13 Pet. 415, 420 (1839). Even if this were a treaty interpretation case that did not involve a political question, the President’s construction of the lease agreement would be entitled to great respect. See Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185 (1982). We therefore do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay. But this does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. As commentators have noted, “ ‘[s]overeignty’ is a term used in many senses and is much abused. ” See 1 Restatement (Third) of Foreign Relations Law of the United States §206, Comment b, p. 94 (1986). When we have stated that sovereignty is a political question, we have referred not to sovereignty in the general, colloquial sense, meaning the exercise of dominion or power, see Webster’s New International Dictionary 2406 (2d ed. 1934) (“sovereignty,” definition 3), but sovereignty in the narrow, legal sense of the term, meaning a claim of right, see 1 Restatement (Third) of Foreign Relations, supra, §206, Comment b, at 94 (noting that sovereignty “implies a state’s lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there”). Indeed, it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another. This condition can occur when the territory is seized during war, as Guantanamo was during the Spanish-American War. See, e.g., Fleming v. Page, 9 How. 603, 614 (1850) (noting that the port of Tampico, conquered by the United States during the war with Mexico, was “undoubtedly … subject to the sovereignty and dominion of the United States,” but that it “does not follow that it was a part of the United States, or that it ceased to be a foreign country”); King v. Earl of Crewe ex parte Sekgome, [1910] 2 K. B. 576, 603–604 (C. A.) (opinion of Williams, L. J.) (arguing that the Bechuanaland Protectorate in South Africa was “under His Majesty’s dominion in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion”). Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. See 542 U. S., at 480; id., at 487 (Kennedy, J., concurring in judgment). Were we to hold that the present cases turn on the political question doctrine, we would be required first to accept the Government’s premise that de jure sovereignty is the touchstone of habeas corpus jurisdiction. This premise, however, is unfounded. For the reasons indicated above, the history of common-law habeas corpus provides scant support for this proposition; and, for the reasons indicated below, that position would be inconsistent with our precedents and contrary to fundamental separation-of-powers principles. A The Court has discussed the issue of the Constitution’s extraterritorial application on many occasions. These decisions undermine the Government’s argument that, at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends. The Framers foresaw that the United States would expand and acquire new territories. See American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828). Article IV, §3, cl. 1, grants Congress the power to admit new States. Clause 2 of the same section grants Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Save for a few notable (and notorious) exceptions, e.g., Dred Scott v. Sandford, 19 How. 393 (1857), throughout most of our history there was little need to explore the outer boundaries of the Constitution’s geographic reach. When Congress exercised its power to create new territories, it guaranteed constitutional protections to the inhabitants by statute. See, e.g., An Act: to establish a Territorial Government for Utah, 9 Stat. 458 (“[T]he Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah”); Rev. Stat. §1891 (“The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized Territories, and in every Territory hereafter organized as elsewhere within the United States”); see generally Burnett, Untied States: American Expansion and Territorial Deannexation, 72 U. Chi. L. Rev. 797, 825–827 (2005). In particular, there was no need to test the limits of the Suspension Clause because, as early as 1789, Congress extended the writ to the Territories. See Act of Aug. 7, 1789, 1 Stat. 52 (reaffirming Art. II of Northwest Ordinance of 1787, which provided that “[t]he inhabitants of the said territory, shall always be entitled to the benefits of the writ of habeas corpus”). Fundamental questions regarding the Constitution’s geographic scope first arose at the dawn of the 20th century when the Nation acquired noncontiguous Territories: Puerto Rico, Guam, and the Philippines—ceded to the United States by Spain at the conclusion of the Spanish-American War—and Hawaii—annexed by the United States in 1898. At this point Congress chose to discontinue its previous practice of extending constitutional rights to the territories by statute. See, e.g., An Act Temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes, 32 Stat. 692 (noting that Rev. Stat. §1891 did not apply to the Philippines). In a series of opinions later known as the Insular Cases, the Court addressed whether the Constitution, by its own force, applies in any territory that is not a State. See De Lima v. Bidwell, 182 U. S. 1 (1901); Dooley v. United States, 182 U. S. 222 (1901); Armstrong v. United States, 182 U. S. 243 (1901); Downes v. Bidwell, 182 U. S. 244 (1901); Hawaii v. Mankichi, 190 U. S. 197 (1903); Dorr v. United States, 195 U. S. 138 (1904). The Court held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. Yet it took note of the difficulties inherent in that position. Prior to their cession to the United States, the former Spanish colonies operated under a civil-law system, without experience in the various aspects of the Anglo-American legal tradition, for instance the use of grand and petit juries. At least with regard to the Philippines, a complete transformation of the prevailing legal culture would have been not only disruptive but also unnecessary, as the United States intended to grant independence to that Territory. See An Act To declare the purpose of the people of the United States as to the future political status of the people of the Philippine Islands, and to provide a more autonomous government for those islands (Jones Act), 39 Stat. 545 (noting that “it was never the intention of the people of the United States in the incipiency of the War with Spain to make it a war of conquest or for territorial aggrandizement” and that “it is, as it has always been, the purpose of the people of the United States to withdraw their sovereignty over the Philippine Islands and to recognize their independence as soon as a stable government can be established therein”). The Court thus was reluctant to risk the uncertainty and instability that could result from a rule that displaced altogether the existing legal systems in these newly acquired Territories. See Downes, supra, at 282 (“It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production … ”). These considerations resulted in the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories. See Dorr, supra, at 143 (“Until Congress shall see fit to incorporate territory ceded by treaty into the United States, … the territory is to be governed under the power existing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation”); Downes, supra, at 293 (White, J., concurring) (“[T]he determination of what particular provision of the Constitution is applicable, generally speaking, in all cases, involves an inquiry into the situation of the territory and its relations to the United States”). As the Court later made clear, “the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.” Balzac v. Porto Rico, 258 U. S. 298, 312 (1922). It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance. Cf. Torres v. Puerto Rico, 442 U. S. 465, 475–476 (1979) (Brennan, J., concurring in judgment) (“Whatever the validity of the [Insular Cases] in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment—or any other provision of the Bill of Rights—to the Commonwealth of Puerto Rico in the 1970’s”). But, as early as Balzac in 1922, the Court took for granted that even in unincorporated Territories the Government of the United States was bound to provide to noncitizen inhabitants “guaranties of certain fundamental personal rights declared in the Constitution.” 258 U. S., at 312; see also Late Corp. of Church of Jesus Christ of Latter-day Saints v. United States, 136 U. S. 1, 44 (1890) (“Doubtless Congress, in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments”). Yet noting the inherent practical difficulties of enforcing all constitutional provisions “always and everywhere,” Balzac, supra, at 312, the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed. This century-old doctrine informs our analysis in the present matter. Practical considerations likewise influenced the Court’s analysis a half-century later in Reid, 354 U. S. 1. The petitioners there, spouses of American servicemen, lived on American military bases in England and Japan. They were charged with crimes committed in those countries and tried before military courts, consistent with executive agreements the United States had entered into with the British and Japanese governments. Id., at 15–16, and nn. 29–30 (plurality opinion). Because the petitioners were not themselves military personnel, they argued they were entitled to trial by jury. Justice Black, writing for the plurality, contrasted the cases before him with the Insular Cases, which involved territories “with wholly dissimilar traditions and institutions” that Congress intended to govern only “temporarily.” Id., at 14. Justice Frankfurter argued that the “specific circumstances of each particular case” are relevant in determining the geographic scope of the Constitution. Id., at 54 (opinion concurring in result). And Justice Harlan, who had joined an opinion reaching the opposite result in the case in the previous Term, Reid v. Covert, 351 U. S. 487 (1956), was most explicit in rejecting a “rigid and abstract rule” for determining where constitutional guarantees extend. Reid, 354 U. S., at 74 (opinion concurring in result). He read the Insular Cases to teach that whether a constitutional provision has extraterritorial effect depends upon the “particular circumstances, the practical necessities, and the possible alternatives which Congress had before it” and, in particular, whether judicial enforcement of the provision would be “impracticable and anomalous.” Id., at 74–75; see also United States v. Verdugo-Urquidez, 494 U. S. 259, 277–278 (1990) (Kennedy, J., concurring) (applying the “impracticable and anomalous” extraterritoriality test in the Fourth Amendment context). That the petitioners in Reid were American citizens was a key factor in the case and was central to the plurality’s conclusion that the Fifth and Sixth Amendments apply to American civilians tried outside the United States. But practical considerations, related not to the petitioners’ citizenship but to the place of their confinement and trial, were relevant to each Member of the Reid majority. And to Justices Harlan and Frankfurter (whose votes were necessary to the Court’s disposition) these considerations were the decisive factors in the case. Indeed the majority splintered on this very point. The key disagreement between the plurality and the concurring Justices in Reid was over the continued precedential value of the Court’s previous opinion in In re Ross, 140 U. S. 453 (1891), which the Reid Court understood as holding that under some circumstances Americans abroad have no right to indictment and trial by jury. The petitioner in Ross was a sailor serving on an American merchant vessel in Japanese waters who was tried before an American consular tribunal for the murder of a fellow crewman. 140 U. S., at 459, 479. The Ross Court held that the petitioner, who was a British subject, had no rights under the Fifth and Sixth Amendments. Id., at 464. The petitioner’s citizenship played no role in the disposition of the case, however. The Court assumed (consistent with the maritime custom of the time) that Ross had all the rights of a similarly situated American citizen. Id., at 479 (noting that Ross was “under the protection and subject to the laws of the United States equally with the seaman who was native born”). The Justices in Reid therefore properly understood Ross as standing for the proposition that, at least in some circumstances, the jury provisions of the Fifth and Sixth Amendments have no application to American citizens tried by American authorities abroad. See 354 U. S., at 11–12 (plurality opinion) (describing Ross as holding that “constitutional protections applied ‘only to citizens and others within the United States … and not to residents or temporary sojourners abroad’ ” (quoting Ross, supra, at 464)); 354 U. S., at 64 (Frankfurter, J., concurring in result) (noting that the consular tribunals upheld in Ross “w[ere] based on long-established custom and they were justified as the best possible means for securing justice for the few Americans present in [foreign] countries”); 354 U. S., at 75 (Harlan, J., concurring in result) (“what Ross and the Insular Cases hold is that the particular local setting, the practical necessities, and the possible alternatives are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress’ power to provide for the trial of Americans overseas”). The Reid plurality doubted that Ross was rightly decided, precisely because it believed the opinion was insufficiently protective of the rights of American citizens. See 354 U. S., at 10–12; see also id., at 78 (Clark, J., dissenting) (noting that “four of my brothers would specifically overrule and two would impair the long-recognized vitality of an old and respected precedent in our law, the case of In re Ross, 140 U. S. 453 (1891)”). But Justices Harlan and Frankfurter, while willing to hold that the American citizen petitioners in the cases before them were entitled to the protections of Fifth and Sixth Amendments, were unwilling to overturn Ross. 354 U. S., at 64 (Frankfurter, J., concurring in result); id., at 75 (Harlan, J., concurring in result). Instead, the two concurring Justices distinguished Ross from the cases before them, not on the basis of the citizenship of the petitioners, but on practical considerations that made jury trial a more feasible option for them than it was for the petitioner in Ross. If citizenship had been the only relevant factor in the case, it would have been necessary for the Court to overturn Ross, something Justices Harlan and Frankfurter were unwilling to do. See Verdugo-Urquidez, supra, at 277 (Kennedy, J., concurring) (noting that Ross had not been overruled). Practical considerations weighed heavily as well in Johnson v. Eisentrager, 339 U. S. 763 (1950), where the Court addressed whether habeas corpus jurisdiction extended to enemy aliens who had been convicted of violating the laws of war. The prisoners were detained at Landsberg Prison in Germany during the Allied Powers’ postwar occupation. The Court stressed the difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding. It “would require allocation of shipping space, guarding personnel, billeting and rations” and would damage the prestige of military commanders at a sensitive time. Id., at 779. In considering these factors the Court sought to balance the constraints of military occupation with constitutional necessities. Id., at 769–779; see Rasul, 542 U. S., at 475–476 (discussing the factors relevant to Eisentrager’s constitutional holding); 542 U. S., at 486 (Kennedy, J., concurring in judgment) (same). True, the Court in Eisentrager denied access to the writ, and it noted the prisoners “at no relevant time were within any territory over which the United States is sovereign, and [that] the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States.” 339 U. S., at 778. The Government seizes upon this language as proof positive that the Eisentrager Court adopted a formalistic, sovereignty-based test for determining the reach of the Suspension Clause. See Brief for Respondents 18–20. We reject this reading for three reasons. First, we do not accept the idea that the above-quoted passage from Eisentrager is the only authoritative language in the opinion and that all the rest is dicta. The Court’s further determinations, based on practical considerations, were integral to Part II of its opinion and came before the decision announced its holding. See 339 U. S., at 781. Second, because the United States lacked both de jure sovereignty and plenary control over Landsberg Prison, see infra, at 34–35, it is far from clear that the Eisentrager Court used the term sovereignty only in the narrow technical sense and not to connote the degree of control the military asserted over the facility. See supra, at 21. The Justices who decided Eisentrager would have understood sovereignty as a multifaceted concept. See Black’s Law Dictionary 1568 (4th ed. 1951) (defining “sovereignty” as “[t]he supreme, absolute, and uncontrollable power by which any independent state is governed”; “the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation”; and “[t]he power to do everything in a state without accountability”); Ballentine’s Law Dictionary with Pronunciations 1216 (2d ed. 1948) (defining “sovereignty” as “[t]hat public authority which commands in civil society, and orders and directs what each citizen is to perform to obtain the end of its institution”). In its principal brief in Eisentrager, the Government advocated a bright-line test for determining the scope of the writ, similar to the one it advocates in these cases. See Brief for Petitioners in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 74–75. Yet the Court mentioned the concept of territorial sovereignty only twice in its opinion. See Eisentrager, supra, at 778, 780. That the Court devoted a significant portion of Part II to a discussion of practical barriers to the running of the writ suggests that the Court was not concerned exclusively with the formal legal status of Landsberg Prison but also with the objective degree of control the United States asserted over it. Even if we assume the Eisentrager Court considered the United States’ lack of formal legal sovereignty over Landsberg Prison as the decisive factor in that case, its holding is not inconsistent with a functional approach to questions of extraterritoriality. The formal legal status of a given territory affects, at least to some extent, the political branches’ control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there. Third, if the Government’s reading of Eisentrager were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases’ (and later Reid’s) functional approach to questions of extraterritoriality. We cannot accept the Government’s view. Nothing in Eisentrager says that de jure sovereignty is or has ever been the only relevant consideration in determining the geographic reach of the Constitution or of habeas corpus. Were that the case, there would be considerable tension between Eisentrager, on the one hand, and the Insular Cases and Reid, on the other. Our cases need not be read to conflict in this manner. A constricted reading of Eisentrager overlooks what we see as a common thread uniting the Insular Cases, Eisentrager, and Reid: the idea that questions of extraterritoriality turn on objective factors and practical concerns, not formalism. B The Government’s formal sovereignty-based test raises troubling separation-of-powers concerns as well. The political history of Guantanamo illustrates the deficiencies of this approach. The United States has maintained complete and uninterrupted control of the bay for over 100 years. At the close of the Spanish-American War, Spain ceded control over the entire island of Cuba to the United States and specifically “relinquishe[d] all claim[s] of sovereignty … and title.” See Treaty of Paris, Dec. 10, 1898, U. S.-Spain, Art. I, 30 Stat. 1755, T. S. No. 343. From the date the treaty with Spain was signed until the Cuban Republic was established on May 20, 1902, the United States governed the territory “in trust” for the benefit of the Cuban people. Neely v. Henkel, 180 U. S. 109, 120 (1901); H. Thomas, Cuba or The Pursuit of Freedom 436, 460 (1998). And although it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. C As we recognized in Rasul, 542 U. S., at 476; id., at 487 (Kennedy, J., concurring in judgment), the outlines of a framework for determining the reach of the Suspension Clause are suggested by the factors the Court relied upon in Eisentrager. In addition to the practical concerns discussed above, the Eisentrager Court found relevant that each petitioner: “(a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.” 339 U. S., at 777. Based on this language from Eisentrager, and the reasoning in our other extraterritoriality opinions, we conclude that at least three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Applying this framework, we note at the onset that the status of these detainees is a matter of dispute. The petitioners, like those in Eisentrager, are not American citizens. But the petitioners in Eisentrager did not contest, it seems, the Court’s assertion that they were “enemy alien[s].” Ibid. In the instant cases, by contrast, the detainees deny they are enemy combatants. They have been afforded some process in CSRT proceedings to determine their status; but, unlike in Eisentrager, supra, at 766, there has been no trial by military commission for violations of the laws of war. The difference is not trivial. The records from the Eisentrager trials suggest that, well before the petitioners brought their case to this Court, there had been a rigorous adversarial process to test the legality of their detention. The Eisentrager petitioners were charged by a bill of particulars that made detailed factual allegations against them. See 14 United Nations War Crimes Commission, Law Reports of Trials of War Criminals 8–10 (1949) (reprint 1997). To rebut the accusations, they were entitled to representation by counsel, allowed to introduce evidence on their own behalf, and permitted to cross-examine the prosecution’s witnesses. See Memorandum by Command of Lt. Gen. Wedemeyer, Jan. 21, 1946 (establishing “Regulations Governing the Trial of War Criminals” in the China Theater), in Tr. of Record in Johnson v. Eisentrager, O. T. 1949, No. 306, pp. 34–40. In comparison the procedural protections afforded to the detainees in the CSRT hearings are far more limited, and, we conclude, fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a “Personal Representative” to assist him during CSRT proceedings, the Secretary of the Navy’s memorandum makes clear that person is not the detainee’s lawyer or even his “advocate.” See App. to Pet. for Cert. in No. 06–1196, at 155, 172. The Government’s evidence is accorded a presumption of validity. Id., at 159. The detainee is allowed to present “reasonably available” evidence, id., at 155, but his ability to rebut the Government’s evidence against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings. See Part V, infra. As to the second factor relevant to this analysis, the detainees here are similarly situated to the Eisentrager petitioners in that the sites of their apprehension and detention are technically outside the sovereign territory of the United States. As noted earlier, this is a factor that weighs against finding they have rights under the Suspension Clause. But there are critical differences between Landsberg Prison, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008. Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite. Like all parts of occupied Germany, the prison was under the jurisdiction of the combined Allied Forces. See Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany, June 5, 1945, U. S.-U. S. S. R.-U. K.-Fr., 60 Stat. 1649, T. I. A. S. No. 1520. The United States was therefore answerable to its Allies for all activities occurring there. Cf. Hirota v. MacArthur, 338 U. S. 197, 198 (1948) (per curiam) (military tribunal set up by Gen. Douglas MacArthur, acting as “the agent of the Allied Powers,” was not a “tribunal of the United States”). The Allies had not planned a long-term occupation of Germany, nor did they intend to displace all German institutions even during the period of occupation. See Agreements Respecting Basic Principles for Merger of the Three Western German Zones of Occupation, and Other Matters, Apr. 8, 1949, U. S.-U. K.-Fr., Art. 1, 63 Stat. 2819, T. I. A. S. No. 2066 (establishing a governing framework “[d]uring the period in which it is necessary that the occupation continue” and expressing the desire “that the German people shall enjoy self-government to the maximum possible degree consistent with such occupation”). The Court’s holding in Eisentrager was thus consistent with the Insular Cases, where it had held there was no need to extend full constitutional protections to territories the United States did not intend to govern indefinitely. Guantanamo Bay, on the other hand, is no transient possession. In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States. See Rasul, 542 U. S., at 480; id., at 487 (Kennedy, J., concurring in judgment). As to the third factor, we recognize, as the Court did in Eisentrager, that there are costs to holding the Suspension Clause applicable in a case of military detention abroad. Habeas corpus proceedings may require expenditure of funds by the Government and may divert the attention of military personnel from other pressing tasks. While we are sensitive to these concerns, we do not find them dispositive. Compliance with any judicial process requires some incremental expenditure of resources. Yet civilian courts and the Armed Forces have functioned along side each other at various points in our history. See, e.g., Duncan v. Kahanamoku, 327 U. S. 304 (1946); Ex parte Milligan, 4 Wall. 2 (1866). The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims. And in light of the plenary control the United States asserts over the base, none are apparent to us. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. When hostilities in the European Theater came to an end, the United States became responsible for an occupation zone encompassing over 57,000 square miles with a population of 18 million. See Letter from President Truman to Secretary of State Byrnes, (Nov. 28, 1945), in 8 Documents on American Foreign Relations 257 (R. Dennett & R. Turner eds. 1948); Pollock, A Territorial Pattern for the Military Occupation of Germany, 38 Am. Pol. Sci. Rev. 970, 975 (1944). In addition to supervising massive reconstruction and aid efforts the American forces stationed in Germany faced potential security threats from a defeated enemy. In retrospect the post-War occupation may seem uneventful. But at the time Eisentrager was decided, the Court was right to be concerned about judicial interference with the military’s efforts to contain “enemy elements, guerilla fighters, and ‘were-wolves.’ ” 339 U. S., at 784. Similar threats are not apparent here; nor does the Government argue that they are. The United States Naval Station at Guantanamo Bay consists of 45 square miles of land and water. The base has been used, at various points, to house migrants and refugees temporarily. At present, however, other than the detainees themselves, the only long-term residents are American military personnel, their families, and a small number of workers. See History of Guantanamo Bay online at https://www.cnic. navy.mil/Guantanamo/AboutGTMO/gtmohistorygeneral/ gtmohistgeneral. The detainees have been deemed enemies of the United States. At present, dangerous as they may be if released, they are contained in a secure prison facility located on an isolated and heavily fortified military base. There is no indication, furthermore, that adjudicating a habeas corpus petition would cause friction with the host government. No Cuban court has jurisdiction over American military personnel at Guantanamo or the enemy combatants detained there. While obligated to abide by the terms of the lease, the United States is, for all practical purposes, answerable to no other sovereign for its acts on the base. Were that not the case, or if the detention facility were located in an active theater of war, arguments that issuing the writ would be “impracticable or anomalous” would have more weight. See Reid, 354 U. S., at 74 (Harlan, J., concurring in result). Under the facts presented here, however, there are few practical barriers to the running of the writ. To the extent barriers arise, habeas corpus procedures likely can be modified to address them. See Part VI–B, infra. It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (Scalia, J., dissenting) (“[I]ndefinite imprisonment on reasonable suspicion is not an available option of treatment for those accused of aiding the enemy, absent a suspension of the writ”). This Court may not impose a de facto suspension by abstaining from these controversies. See Hamdan, 548 U. S., at 585, n. 16 (“[A]bstention is not appropriate in cases … in which the legal challenge ‘turn[s] on the status of the persons as to whom the military asserted its power’ ” (quoting Schlesinger v. Councilman, 420 U. S. 738, 759 (1975))). The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention. V In light of this holding the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus. The Government submits there has been compliance with the Suspension Clause because the DTA review process in the Court of Appeals, see DTA §1005(e), provides an adequate substitute. Congress has granted that court jurisdiction to consider “(i) whether the status determination of the [CSRT] … was consistent with the standards and procedures specified by the Secretary of Defense … and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” §1005(e)(2)(C), 119 Stat. 2742. The Court of Appeals, having decided that the writ does not run to the detainees in any event, found it unnecessary to consider whether an adequate substitute has been provided. In the ordinary course we would remand to the Court of Appeals to consider this question in the first instance. See Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam). It is well settled, however, that the Court’s practice of declining to address issues left unresolved in earlier proceedings is not an inflexible rule. Ibid. Departure from the rule is appropriate in “exceptional” circumstances. See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169 (2004); Duignan v. United States, 274 U. S. 195, 200 (1927). The gravity of the separation-of-powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional. The parties before us have addressed the adequacy issue. While we would have found it informative to consider the reasoning of the Court of Appeals on this point, we must weigh that against the harms petitioners may endure from additional delay. And, given there are few precedents addressing what features an adequate substitute for habeas corpus must contain, in all likelihood a remand simply would delay ultimate resolution of the issue by this Court. We do have the benefit of the Court of Appeals’ construction of key provisions of the DTA. When we granted certiorari in these cases, we noted “it would be of material assistance to consult any decision” in the parallel DTA review proceedings pending in the Court of Appeals, specifically any rulings in the matter of Bismullah v. Gates. 551 U. S. ___ (2007). Although the Court of Appeals has yet to complete a DTA review proceeding, the three-judge panel in Bismullah has issued an interim order giving guidance as to what evidence can be made part of the record on review and what access the detainees can have to counsel and to classified information. See 501 F. 3d 178 (CADC) (Bismullah I), reh’g denied, 503 F. 3d 137 (CADC 2007) (Bismullah II). In that matter the full court denied the Government’s motion for rehearing en banc, see Bismullah v. Gates, 514 F. 3d 1291 (CADC 2008) (Bismullah III). The order denying rehearing was accompanied by five separate statements from members of the court, which offer differing views as to scope of the judicial review Congress intended these detainees to have. Ibid. Under the circumstances we believe the costs of further delay substantially outweigh any benefits of remanding to the Court of Appeals to consider the issue it did not address in these cases. A Our case law does not contain extensive discussion of standards defining suspension of the writ or of circumstances under which suspension has occurred. This simply confirms the care Congress has taken throughout our Nation’s history to preserve the writ and its function. Indeed, most of the major legislative enactments pertaining to habeas corpus have acted not to contract the writ’s protection but to expand it or to hasten resolution of prisoners’ claims. See, e.g., Habeas Corpus Act of 1867, ch. 28, §1, 14 Stat. 385 (current version codified at 28 U. S. C. §2241 (2000 ed. and Supp. V) (extending the federal writ to state prisoners)); Cf. Harris v. Nelson, 394 U. S. 286, 299–300 (1969) (interpreting the All Writs Act, 28 U. S. C. §1651, to allow discovery in habeas corpus proceedings); Peyton v. Rowe, 391 U. S. 54, 64–65 (1968) (interpreting the then-existing version of §2241 to allow petitioner to proceed with his habeas corpus action, even though he had not yet begun to serve his sentence). There are exceptions, of course. Title I of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §106, 110 Stat. 1220, contains certain gatekeeping provisions that restrict a prisoner’s ability to bring new and repetitive claims in “second or successive” habeas corpus actions. We upheld these provisions against a Suspension Clause challenge in Felker v. Turpin, 518 U. S. 651, 662–664 (1996). The provisions at issue in Felker, however, did not constitute a substantial departure from common-law habeas procedures. The provisions, for the most part, codified the longstanding abuse-of-the-writ doctrine. Id., at 664; see also McCleskey v. Zant, 499 U. S. 467, 489 (1991). AEDPA applies, moreover, to federal, postconviction review after criminal proceedings in state court have taken place. As of this point, cases discussing the implementation of that statute give little helpful instruction (save perhaps by contrast) for the instant cases, where no trial has been held. The two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372 (1977), and United States v. Hayman, 342 U. S. 205 (1952), likewise provide little guidance here. The statutes at issue were attempts to streamline habeas corpus relief, not to cut it back. The statute discussed in Hayman was 28 U. S. C. §2255. It replaced traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, “ ‘imposed in violation of the Constitution or laws of the United States.’ ” 342 U. S., at 207, n. 1. The purpose and effect of the statute was not to restrict access to the writ but to make postconviction proceedings more efficient. It directed claims not to the court that had territorial jurisdiction over the place of the petitioner’s confinement but to the sentencing court, a court already familiar with the facts of the case. As the Hayman Court explained “Section 2255 … was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.” Id., at 219. See also Hill v. United States, 368 U. S. 424, 427, 428, and n. 5 (1962) (noting that §2255 provides a remedy in the sentencing court that is “exactly commensurate” with the pre-existing federal habeas corpus remedy). The statute in Swain, D. C. Code Ann. §23–110(g) (1973), applied to prisoners in custody under sentence of the Superior Court of the District of Columbia. Before enactment of the District of Columbia Court Reform and Criminal Procedure Act of 1970 (D. C. Court Reform Act), 84 Stat. 473, those prisoners could file habeas petitions in the United States District Court for the District of Columbia. The Act, which was patterned on §2255, substituted a new collateral process in the Superior Court for the pre-existing habeas corpus procedure in the District Court. See Swain, 430 U. S., at 374–378. But, again, the purpose and effect of the statute was to expedite consideration of the prisoner’s claims, not to delay or frustrate it. See id., at 375, n. 4 (noting that the purpose of the D. C. Court Reform Act was to “alleviate” administrative burdens on the District Court). That the statutes in Hayman and Swain were designed to strengthen, rather than dilute, the writ’s protections was evident, furthermore, from this significant fact: Neither statute eliminated traditional habeas corpus relief. In both cases the statute at issue had a saving clause, providing that a writ of habeas corpus would be available if the alternative process proved inadequate or ineffective. Swain, supra, at 381; Hayman, supra, at 223. The Court placed explicit reliance upon these provisions in upholding the statutes against constitutional challenges. See Swain, supra, at 381 (noting that the provision “avoid[ed] any serious question about the constitutionality of the statute”); Hayman, supra, at 223 (noting that, because habeas remained available as a last resort, it was unnecessary to “reach constitutional questions”). Unlike in Hayman and Swain, here we confront statutes, the DTA and the MCA, that were intended to circumscribe habeas review. Congress’ purpose is evident not only from the unequivocal nature of MCA §7’s jurisdiction-stripping language, 28 U. S. C. A. §2241(e)(1) (Supp. 2007) (“No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus . . .”), but also from a comparison of the DTA to the statutes at issue in Hayman and Swain. When interpreting a statute, we examine related provisions in other parts of the U. S. Code. See, e.g., West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 88–97 (1991); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 717–718 (1995) (Scalia, J., dissenting); see generally W. Eskridge, P. Frickey, & E. Garrett, Cases and Materials on Legislation: Statutes and the Creation of Public Policy 1039 (3d ed. 2001). When Congress has intended to replace traditional habeas corpus with habeas-like substitutes, as was the case in Hayman and Swain, it has granted to the courts broad remedial powers to secure the historic office of the writ. In the §2255 context, for example, Congress has granted to the reviewing court power to “determine the issues and make findings of fact and conclusions of law” with respect to whether “the judgment [of conviction] was rendered without jurisdiction, or … the sentence imposed was not authorized by law or otherwise open to collateral attack.” 28 U. S. C. A. §2255(b) (Supp. 2008). The D. C. Court Reform Act, the statute upheld in Swain, contained a similar provision. §23–110(g), 84 Stat. 609. In contrast the DTA’s jurisdictional grant is quite limited. The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful. DTA §1005(e)(2)(C), 119 Stat. 2742. If Congress had envisioned DTA review as coextensive with traditional habeas corpus, it would not have drafted the statute in this manner. Instead, it would have used language similar to what it used in the statutes at issue in Hayman and Swain. Cf. 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 section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ” (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972))). Unlike in Hayman and Swain, moreover, there has been no effort to preserve habeas corpus review as an avenue of last resort. No saving clause exists in either the MCA or the DTA. And MCA §7 eliminates habeas review for these petitioners. The differences between the DTA and the habeas statute that would govern in MCA §7’s absence, 28 U. S. C. §2241 (2000 ed. and Supp. V), are likewise telling. In §2241 (2000 ed.) Congress confirmed the authority of “any justice” or “circuit judge” to issue the writ. Cf. Felker, 518 U. S., at 660–661 (interpreting Title I of AEDPA to not strip from this Court the power to entertain original habeas corpus petitions). That statute accommodates the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court of competent jurisdiction, whose institutional capacity for factfinding is superior to his or her own. See 28 U. S. C. §2241(b). By granting the Court of Appeals “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), 119 Stat. 2742, Congress has foreclosed that option. This choice indicates Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a §2241 proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA. To the extent any doubt remains about Congress’ intent, the legislative history confirms what the plain text strongly suggests: In passing the DTA Congress did not intend to create a process that differs from traditional habeas corpus process in name only. It intended to create a more limited procedure. See, e.g., 151 Cong. Rec. S14263 (Dec. 21, 2005) (statement of Sen. Graham) (noting that the DTA “extinguish[es] these habeas and other actions in order to effect a transfer of jurisdiction over these cases to the DC Circuit Court” and agreeing that the bill “create[s] in their place a very limited judicial review of certain military administrative decisions”); id., at S14268 (statement of Sen. Kyl) (“It is important to note that the limited judicial review authorized by paragraphs 2 and 3 of subsection (e) [of DTA §1005] are not habeas-corpus review. It is a limited judicial review of its own nature”). It is against this background that we must interpret the DTA and assess its adequacy as a substitute for habeas corpus. The present cases thus test the limits of the Suspension Clause in ways that Hayman and Swain did not. B We do not endeavor to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus. We do consider it uncontroversial, however, that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. St. Cyr, 533 U. S., at 302. And the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted. See Ex parte Bollman, 4 Cranch 75, 136 (1807) (where imprisonment is unlawful, the court “can only direct [the prisoner] to be discharged”); R. Hurd, Treatise on the Right of Personal Liberty, and On the Writ of Habeas Corpus and the Practice Connected with It: With a View of the Law of Extradition of Fugitives 222 (2d ed. 1876) (“It cannot be denied where ‘a probable ground is shown that the party is imprisoned without just cause, and therefore, hath a right to be delivered,’ for the writ then becomes a ‘writ of right, which may not be denied but ought to be granted to every man that is committed or detained in prison or otherwise restrained of his liberty’ ”). But see Chessman v. Teets, 354 U. S. 156, 165–166 (1957) (remanding in a habeas case for retrial within a “reasonable time”). These are the easily identified attributes of any constitutionally adequate habeas corpus proceeding. But, depending on the circumstances, more may be required. Indeed, common-law habeas corpus was, above all, an adaptable remedy. Its precise application and scope changed depending upon the circumstances. See 3 Blackstone *131 (describing habeas as “the great and efficacious writ, in all manner of illegal confinement”); see also Schlup v. Delo, 513 U. S. 298, 319 (1995) (Habeas “is, at its core, an equitable remedy”); Jones v. Cunningham, 371 U. S. 236, 243 (1963) (Habeas is not “a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose”). It appears the common-law habeas court’s role was most extensive in cases of pretrial and noncriminal detention, where there had been little or no previous judicial review of the cause for detention. Notably, the black-letter rule that prisoners could not controvert facts in the jailer’s return was not followed (or at least not with consistency) in such cases. Hurd, supra, at 271 (noting that the general rule was “subject to exceptions” including cases of bail and impressment); Oakes, Legal History in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 457 (1966) (“[W]hen a prisoner applied for habeas corpus before indictment or trial, some courts examined the written depositions on which he had been arrested or committed, and others even heard oral testimony to determine whether the evidence was sufficient to justifying holding him for trial” (footnotes omitted)); Fallon & Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2102 (2007) (“[T]he early practice was not consistent: courts occasionally permitted factual inquiries when no other opportunity for judicial review existed”). There is evidence from 19th-century American sources indicating that, even in States that accorded strong res judicata effect to prior adjudications, habeas courts in this country routinely allowed prisoners to introduce exculpatory evidence that was either unknown or previously unavailable to the prisoner. See, e.g., Ex parte Pattison, 56 Miss. 161, 164 (1878) (noting that “[w]hile the former adjudication must be considered as conclusive on the testimony then adduced” “newly developed exculpatory evidence … may authorize the admission to bail”); Ex parte Foster, 5 Tex. Ct. App. 625, 644 (1879) (construing the State’s habeas statute to allow for the introduction of new evidence “where important testimony has been obtained, which, though not newly discovered, or which, though known to [the petitioner], it was not in his power to produce at the former hearing; [and] where the evidence was newly discovered”); People v. Martin, 7 N. Y. Leg. Obs. 49, 56 (1848) (“If in custody on criminal process before indictment, the prisoner has an absolute right to demand that the original depositions be looked into to see whether any crime is in fact imputed to him, and the inquiry will by no means be confined to the return. Facts out of the return may be gone into to ascertain whether the committing magistrate may not have arrived at an illogical conclusion upon the evidence given before him …”); see generally W. Church, Treatise on the Writ of Habeas Corpus §182, p. 235 1886) (hereinafter Church) (noting that habeas courts would “hear evidence anew if justice require it”). Justice McLean, on Circuit in 1855, expressed his view that a habeas court should consider a prior judgment conclusive “where there was clearly jurisdiction and a full and fair hearing; but that it might not be so considered when any of these requisites were wanting.” Ex parte Robinson, 20 F. Cas. 969, 971, (No. 11,935) (CC Ohio 1855). To illustrate the circumstances in which the prior adjudication did not bind the habeas court, he gave the example of a case in which “[s]everal unimpeached witnesses” provided new evidence to exculpate the prisoner. Ibid. The idea that the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings accords with our test for procedural adequacy in the due process context. See Mathews v. Eldridge, 424 U. S. 319, 335 (1976) (noting that the Due Process Clause requires an assessment of, inter alia, “the risk of an erroneous deprivation of [a liberty interest;] and the probable value, if any, of additional or substitute procedural safeguards”). This principle has an established foundation in habeas corpus jurisprudence as well, as Chief Justice Marshall’s opinion in Ex parte Watkins, 3 Pet. 193 (1830), demonstrates. Like the petitioner in Swain, Watkins sought a writ of habeas corpus after being imprisoned pursuant to a judgment of a District of Columbia court. In holding that the judgment stood on “high ground,” 3 Pet., at 209, the Chief Justice emphasized the character of the court that rendered the original judgment, noting it was a “court of record, having general jurisdiction over criminal cases.” Id., at 203. In contrast to “inferior” tribunals of limited jurisdiction, ibid., courts of record had broad remedial powers, which gave the habeas court greater confidence in the judgment’s validity. See generally Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 982–983 (1998). Accordingly, where relief is sought from a sentence that resulted from the judgment of a court of record, as was the case in Watkins and indeed in most federal habeas cases, considerable deference is owed to the court that ordered confinement. See Brown v. Allen, 344 U. S. 443, 506 (1953) (opinion of Frankfurter, J.) (noting that a federal habeas court should accept a state court’s factual findings unless “a vital flaw be found in the process of ascertaining such facts in the State court”). Likewise in those cases the prisoner should exhaust adequate alternative remedies before filing for the writ in federal court. See Ex parte Royall, 117 U. S. 241, 251–252 (1886) (requiring exhaustion of state collateral processes). Both aspects of federal habeas corpus review are justified because it can be assumed that, in the usual course, a court of record provides defendants with a fair, adversary proceeding. In cases involving state convictions this framework also respects federalism; and in federal cases it has added justification because the prisoner already has had a chance to seek review of his conviction in a federal forum through a direct appeal. The present cases fall outside these categories, however; for here the detention is by executive order. Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing. A criminal conviction in the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention orders or executive review procedures. In this context the need for habeas corpus is more urgent. The intended duration of the detention and the reasons for it bear upon the precise scope of the inquiry. Habeas corpus proceedings need not resemble a criminal trial, even when the detention is by executive order. But the writ must be effective. The habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain. To determine the necessary scope of habeas corpus review, therefore, we must assess the CSRT process, the mechanism through which petitioners’ designation as enemy combatants became final. Whether one characterizes the CSRT process as direct review of the Executive’s battlefield determination that the detainee is an enemy combatant—as the parties have and as we do—or as the first step in the collateral review of a battlefield determination makes no difference in a proper analysis of whether the procedures Congress put in place are an adequate substitute for habeas corpus. What matters is the sum total of procedural protections afforded to the detainee at all stages, direct and collateral. Petitioners identify what they see as myriad deficiencies in the CSRTs. The most relevant for our purposes are the constraints upon the detainee’s ability to rebut the factual basis for the Government’s assertion that he is an enemy combatant. As already noted, see Part IV–C, supra, at the CSRT stage the detainee has limited means to find or present evidence to challenge the Government’s case against him. He does not have the assistance of counsel and may not be aware of the most critical allegations that the Government relied upon to order his detention. See App. to Pet. for Cert. in No. 06–1196, at 156, ¶F(8) (noting that the detainee can access only the “unclassified portion of the Government Information”). The detainee can confront witnesses that testify during the CSRT proceedings. Id., at 144, ¶g(8). But given that there are in effect no limits on the admission of hearsay evidence—the only requirement is that the tribunal deem the evidence “relevant and helpful,” ibid., ¶g(9)—the detainee’s opportunity to question witnesses is likely to be more theoretical than real. The Government defends the CSRT process, arguing that it was designed to conform to the procedures suggested by the plurality in Hamdi. See 542 U. S., at 538. Setting aside the fact that the relevant language in Hamdi did not garner a majority of the Court, it does not control the matter at hand. None of the parties in Hamdi argued there had been a suspension of the writ. Nor could they. The §2241 habeas corpus process remained in place, id., at 525. Accordingly, the plurality concentrated on whether the Executive had the authority to detain and, if so, what rights the detainee had under the Due Process Clause. True, there are places in the Hamdi plurality opinion where it is difficult to tell where its extrapolation of §2241 ends and its analysis of the petitioner’s Due Process rights begins. But the Court had no occasion to define the necessary scope of habeas review, for Suspension Clause purposes, in the context of enemy combatant detentions. The closest the plurality came to doing so was in discussing whether, in light of separation-of-powers concerns, §2241 should be construed to forbid the District Court from inquiring beyond the affidavit Hamdi’s custodian provided in answer to the detainee’s habeas petition. The plurality answered this question with an emphatic “no.” Id., at 527 (labeling this argument as “extreme”); id., at 535–536. Even if we were to assume that the CSRTs satisfy due process standards, it would not end our inquiry. Habeas corpus is a collateral process that exists, in Justice Holmes’ words, to “cu[t] through all forms and g[o] to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell.” Frank v. Mangum, 237 U. S. 309, 346 (1915) (dissenting opinion). Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant. See 2 Chambers, Course of Lectures on English Law 1767–1773, at 6 (“Liberty may be violated either by arbitrary imprisonment without law or the appearance of law, or by a lawful magistrate for an unlawful reason”). This is so, as Hayman and Swain make clear, even where the prisoner is detained after a criminal trial conducted in full accordance with the protections of the Bill of Rights. Were this not the case, there would have been no reason for the Court to inquire into the adequacy of substitute habeas procedures in Hayman and Swain. That the prisoners were detained pursuant to the most rigorous proceedings imaginable, a full criminal trial, would have been enough to render any habeas substitute acceptable per se. Although we make no judgment as to whether the CSRTs, as currently constituted, satisfy due process standards, we agree with petitioners that, even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact. This is a risk inherent in any process that, in the words of the former Chief Judge of the Court of Appeals, is “closed and accusatorial.” See Bismullah III, 514 F. 3d, at 1296 (Ginsburg, C. J., concurring in denial of rehearing en banc). And given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore. For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting. See Townsend v. Sain, 372 U. S. 293, 313 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U. S. 1, 5 (1992). Here that opportunity is constitutionally required. Consistent with the historic function and province of the writ, habeas corpus review may be more circumscribed if the underlying detention proceedings are more thorough than they were here. In two habeas cases involving enemy aliens tried for war crimes, In re Yamashita, 327 U. S. 1 (1946), and Ex parte Quirin, 317 U. S. 1 (1942), for example, this Court limited its review to determining whether the Executive had legal authority to try the petitioners by military commission. See Yamashita, supra, at 8 (“[O]n application for habeas corpus we are not concerned with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the petitioner for the offense charged”); Quirin, supra, at 25 (“We are not here concerned with any question of the guilt or innocence of petitioners”). Military courts are not courts of record. See Watkins, 3 Pet., at 209; Church 513. And the procedures used to try General Yamashita have been sharply criticized by Members of this Court. See Hamdan, 548 U. S., at 617; Yamashita, supra, at 41–81 (Rutledge, J., dissenting). We need not revisit these cases, however. For on their own terms, the proceedings in Yamashita and Quirin, like those in Eisentrager, had an adversarial structure that is lacking here. See Yamashita, supra, at 5 (noting that General Yamashita was represented by six military lawyers and that “[t]hroughout the proceedings … defense counsel … demonstrated their professional skill and resourcefulness and their proper zeal for the defense with which they were charged”); Quirin, supra, at 23–24; Exec. Order No. 9185, 7 Fed. Reg. 5103 (1942) (appointing counsel to represent the German saboteurs). The extent of the showing required of the Government in these cases is a matter to be determined. We need not explore it further at this stage. We do hold that when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release. C We now consider whether the DTA allows the Court of Appeals to conduct a proceeding meeting these standards. “[W]e are obligated to construe the statute to avoid [constitutional] problems” if it is “ ‘fairly possible’ ” to do so. St. Cyr, 533 U. S., at 299–300 (quoting Crowell v. Benson, 285 U. S. 22, 62 (1932)). There are limits to this principle, however. The canon of constitutional avoidance does not supplant traditional modes of statutory interpretation. See Clark v. Martinez, 543 U. S. 371, 385 (2005) (“The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them”). We cannot ignore the text and purpose of a statute in order to save it. The DTA does not explicitly empower the Court of Appeals to order the applicant in a DTA review proceeding released should the court find that the standards and procedures used at his CSRT hearing were insufficient to justify detention. This is troubling. Yet, for present purposes, we can assume congressional silence permits a constitutionally required remedy. In that case it would be possible to hold that a remedy of release is impliedly provided for. The DTA might be read, furthermore, to allow the petitioners to assert most, if not all, of the legal claims they seek to advance, including their most basic claim: that the President has no authority under the AUMF to detain them indefinitely. (Whether the President has such authority turns on whether the AUMF authorizes—and the Constitution permits—the indefinite detention of “enemy combatants” as the Department of Defense defines that term. Thus a challenge to the President’s authority to detain is, in essence, a challenge to the Department’s definition of enemy combatant, a “standard” used by the CSRTs in petitioners’ cases.) At oral argument, the Solicitor General urged us to adopt both these constructions, if doing so would allow MCA §7 to remain intact. See Tr. of Oral Arg. 37, 53. The absence of a release remedy and specific language allowing AUMF challenges are not the only constitutional infirmities from which the statute potentially suffers, however. The more difficult question is whether the DTA permits the Court of Appeals to make requisite findings of fact. The DTA enables petitioners to request “review” of their CSRT determination in the Court of Appeals, DTA §1005(e)(2)(B)(i), 119 Stat. 2742; but the “Scope of Review” provision confines the Court of Appeals’ role to reviewing whether the CSRT followed the “standards and procedures” issued by the Department of Defense and assessing whether those “standards and procedures” are lawful. §1005(e)(C), ibid. Among these standards is “the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence … allowing a rebuttable presumption in favor of the Government’s evidence.” §1005(e)(C)(i), ibid. Assuming the DTA can be construed to allow the Court of Appeals to review or correct the CSRT’s factual determinations, as opposed to merely certifying that the tribunal applied the correct standard of proof, we see no way to construe the statute to allow what is also constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings. On its face the statute allows the Court of Appeals to consider no evidence outside the CSRT record. In the parallel litigation, however, the Court of Appeals determined that the DTA allows it to order the production of all “ ‘reasonably available information in the possession of the U. S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,’ ” regardless of whether this evidence was put before the CSRT. See Bismullah I, 501 F. 3d, at 180. The Government, see Pet. for Cert. pending in Gates v. Bismullah, No. 07–1054 (hereinafter Bismullah Pet.), with support from five members of the Court of Appeals, see Bismullah III, 514 F. 3d, at 1299 (Henderson, J., dissenting from denial of rehearing en banc); id., at 1302 (opinion of Randolph, J.) (same); id., at 1306 (opinion of Brown, J.) (same), disagrees with this interpretation. For present purposes, however, we can assume that the Court of Appeals was correct that the DTA allows introduction and consideration of relevant exculpatory evidence that was “reasonably available” to the Government at the time of the CSRT but not made part of the record. Even so, the DTA review proceeding falls short of being a constitutionally adequate substitute, for the detainee still would have no opportunity to present evidence discovered after the CSRT proceedings concluded. Under the DTA the Court of Appeals has the power to review CSRT determinations by assessing the legality of standards and procedures. This implies the power to inquire into what happened at the CSRT hearing and, perhaps, to remedy certain deficiencies in that proceeding. But should the Court of Appeals determine that the CSRT followed appropriate and lawful standards and procedures, it will have reached the limits of its jurisdiction. There is no language in the DTA that can be construed to allow the Court of Appeals to admit and consider newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings. This evidence, however, may be critical to the detainee’s argument that he is not an enemy combatant and there is no cause to detain him. This is not a remote hypothetical. One of the petitioners, Mohamed Nechla, requested at his CSRT hearing that the Government contact his employer. The petitioner claimed the employer would corroborate Nechla’s contention he had no affiliation with al Qaeda. Although the CSRT determined this testimony would be relevant, it also found the witness was not reasonably available to testify at the time of the hearing. Petitioner’s counsel, however, now represents the witness is available to be heard. See Brief for Boumediene Petitioners 5. If a detainee can present reasonably available evidence demonstrating there is no basis for his continued detention, he must have the opportunity to present this evidence to a habeas corpus court. Even under the Court of Appeals’ generous construction of the DTA, however, the evidence identified by Nechla would be inadmissible in a DTA review proceeding. The role of an Article III court in the exercise of its habeas corpus function cannot be circumscribed in this manner. By foreclosing consideration of evidence not presented or reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the scope of collateral review to a record that may not be accurate or complete. In other contexts, e.g., in post-trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims, similar limitations on the scope of habeas review may be appropriate. See Williams v. Taylor, 529 U. S. 420, 436–437 (2000) (noting that §2254 “does not equate prisoners who exercise diligence in pursuing their claims with those who do not”). In this context, however, where the underlying detention proceedings lack the necessary adversarial character, the detainee cannot be held responsible for all deficiencies in the record. The Government does not make the alternative argument that the DTA allows for the introduction of previously unavailable exculpatory evidence on appeal. It does point out, however, that if a detainee obtains such evidence, he can request that the Deputy Secretary of Defense convene a new CSRT. See Supp. Brief for Respondents 4. Whatever the merits of this procedure, it is an insufficient replacement for the factual review these detainees are entitled to receive through habeas corpus. The Deputy Secretary’s determination whether to initiate new proceedings is wholly a discretionary one. See Dept. of Defense, Office for the Administrative Review of the Detention of Enemy Combatants, Instruction 5421.1, Procedure for Review of “New Evidence” Relating to Enemy Combatant (EC) Status ¶5(d) (May 7, 2007) (Instruction 5421.1) (“The decision to convene a CSRT to reconsider the basis of the detainee’s [enemy combatant] status in light of ‘new evidence’ is a matter vested in the unreviewable discretion of the [Deputy Secretary of Defense]”). And we see no way to construe the DTA to allow a detainee to challenge the Deputy Secretary’s decision not to open a new CSRT pursuant to Instruction 5421.1. Congress directed the Secretary of Defense to devise procedures for considering new evidence, see DTA §1005(a)(3), but the detainee has no mechanism for ensuring that those procedures are followed. DTA §1005(e)(2)(C), 119 Stat. 2742, makes clear that the Court of Appeals’ jurisdiction is “limited to consideration of … whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense … and … whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” DTA §1005(e)(2)(A), ibid., further narrows the Court of Appeals’ jurisdiction to reviewing “any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” The Deputy Secretary’s determination whether to convene a new CSRT is not a “status determination of the Combatant Status Review Tribunal,” much less a “final decision” of that body. We do not imply DTA review would be a constitutionally sufficient replacement for habeas corpus but for these limitations on the detainee’s ability to present exculpatory evidence. For even if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President’s legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress’ reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus. Although we do not hold that an adequate substitute must duplicate §2241 in all respects, it suffices that the Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ. In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement. VI A In light of our conclusion that there is no jurisdictional bar to the District Court’s entertaining petitioners’ claims the question remains whether there are prudential barriers to habeas corpus review under these circumstances. The Government argues petitioners must seek review of their CSRT determinations in the Court of Appeals before they can proceed with their habeas corpus actions in the District Court. As noted earlier, in other contexts and for prudential reasons this Court has required exhaustion of alternative remedies before a prisoner can seek federal habeas relief. Most of these cases were brought by prisoners in state custody, e.g., Ex parte Royall, 117 U. S. 241, and thus involved federalism concerns that are not relevant here. But we have extended this rule to require defendants in courts-martial to exhaust their military appeals before proceeding with a federal habeas corpus action. See Schlesinger, 420 U. S., at 758. The real risks, the real threats, of terrorist attacks are constant and not likely soon to abate. The ways to disrupt our life and laws are so many and unforeseen that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept. In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way. Cf. Ex parte Milligan, 4 Wall., at 127 (“If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course”). Here, as is true with detainees apprehended abroad, a relevant consideration in determining the courts’ role is whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power. The cases before us, however, do not involve detainees who have been held for a short period of time while awaiting their CSRT determinations. Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete DTA review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first DTA review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing. Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact. Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status. B Although we hold that the DTA is not an adequate and effective substitute for habeas corpus, it does not follow that a habeas corpus court may disregard the dangers the detention in these cases was intended to prevent. Felker, Swain, and Hayman stand for the proposition that the Suspension Clause does not resist innovation in the field of habeas corpus. Certain accommodations can be made to reduce the burden habeas corpus proceedings will place on the military without impermissibly diluting the protections of the writ. In the DTA Congress sought to consolidate review of petitioners’ claims in the Court of Appeals. Channeling future cases to one district court would no doubt reduce administrative burdens on the Government. This is a legitimate objective that might be advanced even without an amendment to §2241. If, in a future case, a detainee files a habeas petition in another judicial district in which a proper respondent can be served, see Rumsfeld v. Padilla, 542 U. S. 426, 435–436 (2004), the Government can move for change of venue to the court that will hear these petitioners’ cases, the United States District Court for the District of Columbia. See 28 U. S. C. §1404(a); Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 499, n. 15 (1973). Another of Congress’ reasons for vesting exclusive jurisdiction in the Court of Appeals, perhaps, was to avoid the widespread dissemination of classified information. The Government has raised similar concerns here and elsewhere. See Brief for Respondents 55–56; Bismullah Pet. 30. We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees’ habeas corpus proceedings. We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible. Cf. United States v. Reynolds, 345 U. S. 1, 10 (1953) (recognizing an evidentiary privilege in a civil damages case where “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged”). These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance. * * * In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism. Cf. Hamdan, 548 U. S., at 636 (Breyer, J., concurring) (“[J]udicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so”). It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law. The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion. It is so ordered.
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553.US.639
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Each year the Cook County Treasurer’s Office holds a public auction to sell its tax liens on delinquent taxpayers’ property. To prevent any one buyer from obtaining a disproportionate share of the liens, the county adopted the “Single, Simultaneous Bidder Rule” (Rule), which requires each buyer to submit bids in its own name, prohibits a buyer from using “apparent agents, employees, or related entities” to submit simultaneous bids for the same parcel, and requires a registered bidder to submit a sworn affidavit affirming its compliance with the Rule. Petitioners and respondents regularly participate in the tax sales. Respondents filed suit, alleging that petitioners fraudulently obtained a disproportionate share of liens by filing false compliance attestations. As relevant here, they claim that petitioners violated and conspired to violate the Racketeer Influenced and Corrupt Organizations Act (RICO) through a pattern of racketeering activity involving mail fraud, which occurred when petitioners sent property owners various notices required by Illinois law. The District Court dismissed the RICO claims for lack of standing, finding that respondents were not protected by the mail fraud statute because they did not receive the alleged misrepresentations. Reversing, the Seventh Circuit based standing on the injury respondents suffered when they lost the chance to obtain more liens, and found that respondents had sufficiently alleged proximate cause because they were immediately injured by petitioners’ scheme. The court also rejected petitioners’ argument that respondents are not entitled to relief under RICO because they had not received, and therefore had not relied on, any false statements. Held: A plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant’s alleged misrepresentations. Pp. 6–21. (a) In 18 U. S. C. §1964(c), RICO provides a private right of action for treble damages to “[a]ny person injured in his business or property by reason of a violation,” as pertinent here, of §1962(c), which makes it “unlawful for any person employed by or associated with” a qualifying enterprise “to conduct or participate … in the conduct of such enterprise’s affairs through a pattern of racketeering activity,” including “mail fraud,” §1961(1)(B). Mail fraud, in turn, occurs whenever a person, “having devised or intending to devise any scheme or artifice to defraud,” uses the mail “for the purpose of executing such scheme or artifice.” §1341. The gravamen of the offense is the scheme to defraud, and any “ ‘mailing … incident to an essential part of the scheme’ … satisfies the mailing element,” Schmuck v. United States, 489 U. S. 705, 712, even if the mailing “contain[s] no false information,” id., at 715. Once the relationship among these statutory provisions is understood, respondents’ theory of the case is straightforward. Petitioners nonetheless argue that because the alleged pattern of racketeering activity is predicated on mail fraud, respondents must show that they relied on petitioners’ fraudulent misrepresentations, which they cannot do because the misrepresentations were made to the county. Nothing on the statute’s face imposes such a requirement. Using the mail to execute or attempt to execute a scheme to defraud is indictable as mail fraud, and hence a predicate racketeering act under RICO, even if no one relied on any misrepresentation, see Neder v. United States, 527 U. S. 1, 24–25; and one can conduct the affairs of a qualifying enterprise through a pattern of such acts without anyone relying on a fraudulent misrepresentation. Thus, no reliance showing is required to establish that a person has violated §1962(c) by conducting an enterprise’s affairs through a pattern of racketeering activity predicated on mail fraud. Nor can a first-party reliance requirement be derived from §1964(c), which, by providing a right of action to “[a]ny person” injured by a violation of §1962, suggests a breadth of coverage not easily reconciled with an implicit first-party reliance requirement. Moreover, a person can be injured “by reason of” a pattern of mail fraud even if he has not relied on any misrepresentations. For example, accepting respondents’ allegations as true, they were harmed by petitioners’ scheme when they lost valuable liens they otherwise would have been awarded. Pp. 6–10. (b) None of petitioners’ arguments—that under the “common-law meaning” rule, Congress should be presumed to have made reliance an element of a civil RICO claim predicated on a violation of the mail fraud statute; that a plaintiff bringing a RICO claim based on mail fraud must show reliance on the defendant’s misrepresentations in order to establish proximate cause; and that RICO should be interpreted to require first-party reliance for fraud-based claims in order to avoid the “overfederalization” of traditional state-law claims—persuades this Court to read a first-party reliance requirement into a statute that by its terms suggests none. Pp. 10–21. 477 F. 3d 928, affirmed. Thomas, J., delivered the opinion for a unanimous Court.
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The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), 18 U. S. C. §§1961–1968, provides a private right of action for treble damages to “[a]ny person injured in his business or property by reason of a violation” of the Act’s criminal prohibitions. §1964(c). The question presented in this case is whether a plaintiff asserting a RICO claim predicated on mail fraud must plead and prove that it relied on the defendant’s alleged misrepresentations. Because we agree with the Court of Appeals that a showing of first-party reliance is not required, we affirm. I Each year the Cook County, Illinois, Treasurer’s Office holds a public auction at which it sells tax liens it has acquired on the property of delinquent taxpayers.[Footnote 1] Prospective buyers bid on the liens, but not in cash amounts. Instead, the bids are stated as percentage penalties the property owner must pay the winning bidder in order to clear the lien. The bidder willing to accept the lowest penalty wins the auction and obtains the right to purchase the lien in exchange for paying the outstanding taxes on the property. The property owner may then redeem the property by paying the lienholder the delinquent taxes, plus the penalty established at the auction and an additional 12% penalty on any taxes subsequently paid by the lienholder. If the property owner does not redeem the property within the statutory redemption period, the lienholder may obtain a tax deed for the property, thereby in effect purchasing the property for the value of the delinquent taxes. Because property acquired in this manner can often be sold at a significant profit over the amount paid for the lien, the auctions are marked by stiff competition. As a result, most parcels attract multiple bidders willing to accept the lowest penalty permissible—0%, that is to say, no penalty at all. (Perhaps to prevent the perverse incentive taxpayers would have if they could redeem their property from a winning bidder for less than the amount of their unpaid taxes, the county does not accept negative bids.) The lower limit of 0% creates a problem: Who wins when the bidding results in a tie? The county’s solution is to allocate parcels “on a rotational basis” in order to ensure that liens are apportioned fairly among 0% bidders. App. 18. But this creates a perverse incentive of its own: Bidders who, in addition to bidding themselves, send agents to bid on their behalf will obtain a disproportionate share of liens. To prevent this kind of manipulation, the county adopted the “Single, Simultaneous Bidder Rule,” which requires each “tax buying entity” to submit bids in its own name and prohibits it from using “apparent agents, employees, or related entities” to submit simultaneous bids for the same parcel.[Footnote 2] App. 67. Upon registering for an auction, each bidder must submit a sworn affidavit affirming that it complies with the Single, Simultaneous Bidder Rule. Petitioners and respondents are regular participants in Cook County’s tax sales. In July 2005, respondents filed a complaint in the United States District Court for the Northern District of Illinois, contending that petitioners had fraudulently obtained a disproportionate share of liens by violating the Single, Simultaneous Bidder Rule at the auctions held from 2002 to 2005. According to respondents, petitioner Sabre Group, LLC, and its principal Barrett Rochman arranged for related firms to bid on Sabre Group’s behalf and directed them to file false attestations that they complied with the Single, Simultaneous Bidder Rule. Having thus fraudulently obtained the opportunity to participate in the auction, the related firms collusively bid on the same properties at a 0% rate. As a result, when the county allocated liens on a rotating basis,[Footnote 3] it treated the related firms as independent entities, allowing them collectively to acquire a greater number of liens than would have been granted to a single bidder acting alone. The related firms then purchased the liens and transferred the certificates of purchase to Sabre Group. In this way, respondents allege, petitioners deprived them and other bidders of their fair share of liens and the attendant financial benefits. Respondents’ complaint contains five counts. Counts I–IV allege that petitioners violated and conspired to violate RICO by conducting their affairs through a pattern of racketeering activity involving numerous acts of mail fraud. In support of their allegations of mail fraud, respondents assert that petitioners “mailed or caused to be mailed hundreds of mailings in furtherance of the scheme,” App. 49, when they sent property owners various notices required by Illinois law. Count V alleges a state-law claim of tortious interference with prospective business advantage. On petitioners’ motion, the District Court dismissed respondents’ RICO claims for lack of standing. It observed that “[o]nly [respondents] and other competing buyers, as opposed to the Treasurer or the property owners, would suffer a financial loss from a scheme to violate the Single, Simultaneous Bidder Rule.” App. to Pet. for Cert. 17a. But it concluded that respondents “are not in the class of individuals protected by the mail fraud statute, and therefore are not within the ‘zone of interests’ that the RICO statute protects,” because they “were not recipients of the alleged misrepresentations and, at best were indirect victims of the alleged fraud.” Id., at 18a. The District Court declined to exercise supplemental jurisdiction over respondents’ tortious-interference claim and dismissed it without prejudice. The Court of Appeals for the Seventh Circuit reversed. It first concluded that “[s]tanding is not a problem in this suit” because plaintiffs suffered a “real injury” when they lost the valuable chance to acquire more liens, and because “that injury can be redressed by damages.” 477 F. 3d 928, 930 (2007). The Court of Appeals next concluded that respondents had sufficiently alleged proximate cause under Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 (1992), and Anza v. Ideal Steel Supply Corp., 547 U. S. 451 (2006), because they (along with other losing bidders) were “immediately injured” by petitioners’ scheme. 477 F. 3d, at 930–932. Finally, the Court of Appeals rejected petitioners’ argument that respondents are not entitled to relief under RICO because they did not receive, and therefore did not rely on, any false statements: “A scheme that injures D by making false statements through the mail to E is mail fraud, and actionable by D through RICO if the injury is not derivative of someone else’s.” Id., at 932. With respect to this last holding, the Court of Appeals acknowledged that courts have taken conflicting views. By its count, “[t]hree other circuits that have considered this question agree … that the direct victim may recover through RICO whether or not it is the direct recipient of the false statements,” ibid. (citing Mid Atlantic Telecom, Inc. v. Long Distance Servs., Inc., 18 F. 3d 260, 263–264 (CA4 1994); Systems Management, Inc. v. Loiselle, 303 F. 3d 100, 103–104 (CA1 2002); Ideal Steel Supply Corp. v. Anza, 373 F. 3d 251, 263 (CA2 2004)), whereas two Circuits hold that the plaintiff must show that it in fact relied on the defendant’s misrepresentations, 477 F. 3d, at 932 (citing VanDenBroeck v. CommonPoint Mortgage Co., 210 F. 3d 696, 701 (CA6 2000); Sikes v. Teleline, Inc., 281 F. 3d 1350, 1360–1361 (CA11 2002)). Compare also Sandwich Chef of Texas, Inc. v. Reliance Nat’l Indemnity Ins. Co., 319 F. 3d 205, 223 (CA5 2003) (recognizing “a narrow exception to the requirement that the plaintiff prove direct reliance on the defendant’s fraudulent predicate act … when the plaintiff can demonstrate injury as a direct and contemporaneous result of a fraud committed against a third party”), with Appletree Square I, L. P. v. W. R. Grace & Co., 29 F. 3d 1283, 1286–1287 (CA8 1994) (requiring the plaintiff to show that it detrimentally relied on the defendant’s misrepresentations). We granted certiorari, 552 U. S. ___ (2008), to resolve the conflict among the Courts of Appeals on “the substantial question,” Anza, 547 U. S., at 461, whether first-party reliance is an element of a civil RICO claim predicated on mail fraud.[Footnote 4] II We begin by setting forth the applicable statutory provisions. RICO’s private right of action is contained in 18 U. S. C. §1964(c), which provides in relevant part that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” Section 1962 contains RICO’s criminal prohibitions. Pertinent here is §1962(c), which makes it “unlawful for any person employed by or associated with” an enterprise engaged in or affecting interstate or foreign commerce “to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” The term “racketeering activity” is defined to include a host of so-called predicate acts, including “any act which is indictable under … section 1341 (relating to mail fraud).” §1961(1)(B). The upshot is that RICO provides a private right of action for treble damages to any person injured in his business or property by reason of the conduct of a qualifying enterprise’s affairs through a pattern of acts indictable as mail fraud. Mail fraud, in turn, occurs whenever a person, “having devised or intending to devise any scheme or artifice to defraud,” uses the mail “for the purpose of executing such scheme or artifice or attempting so to do.” §1341. The gravamen of the offense is the scheme to defraud, and any “mailing that is incident to an essential part of the scheme satisfies the mailing element,” Schmuck v. United States, 489 U. S. 705, 712 (1989) (citation and internal quotation marks omitted), even if the mailing itself “contain[s] no false information,” id., at 715. Once the relationship among these statutory provisions is understood, respondents’ theory of the case is straightforward. They allege that petitioners devised a scheme to defraud when they agreed to submit false attestations of compliance with the Single, Simultaneous Bidder Rule to the county. In furtherance of this scheme, petitioners used the mail on numerous occasions to send the requisite notices to property owners. Each of these mailings was an “act which is indictable” as mail fraud, and together they constituted a “pattern of racketeering activity.” By conducting the affairs of their enterprise through this pattern of racketeering activity, petitioners violated §1962(c). As a result, respondents lost the opportunity to acquire valuable liens. Accordingly, respondents were injured in their business or property by reason of petitioners’ violation of §1962(c), and RICO’s plain terms give them a private right of action for treble damages. Petitioners argue, however, that because the alleged pattern of racketeering activity consisted of acts of mail fraud, respondents must show that they relied on petitioners’ fraudulent misrepresentations. This they cannot do, because the alleged misrepresentations—petitioners’ attestations of compliance with the Single, Simultaneous Bidder Rule—were made to the county, not respondents. The county may well have relied on petitioners’ misrepresentations when it permitted them to participate in the auction, but respondents, never having received the misrepresentations, could not have done so. Indeed, respondents do not even allege that they relied on petitioners’ false attestations. Thus, petitioners submit, they fail to state a claim under RICO. If petitioners’ proposed requirement of first-party reliance seems to come out of nowhere, there is a reason: Nothing on the face of the relevant statutory provisions imposes such a requirement. Using the mail to execute or attempt to execute a scheme to defraud is indictable as mail fraud, and hence a predicate act of racketeering under RICO, even if no one relied on any misrepresentation. See Neder v. United States, 527 U. S. 1, 24–25 (1999) (“The common-law requiremen[t] of ‘justifiable reliance’ … plainly ha[s] no place in the [mail, wire, or bank] fraud statutes”). And one can conduct the affairs of a qualifying enterprise through a pattern of such acts without anyone relying on a fraudulent misrepresentation. It thus seems plain—and indeed petitioners do not dispute—that no showing of reliance is required to establish that a person has violated §1962(c) by conducting the affairs of an enterprise through a pattern of racketeering activity consisting of acts of mail fraud. See Anza, 547 U. S., at 476 (Thomas, J., concurring in part and dissenting in part) (“Because an individual can commit an indictable act of mail or wire fraud even if no one relies on his fraud, he can engage in a pattern of racketeering activity, in violation of §1962, without proof of reliance”). If reliance is required, then, it must be by virtue of §1964(c), which provides the right of action. But it is difficult to derive a first-party reliance requirement from §1964(c), which states simply that “[a]ny person injured in his business or property by reason of a violation of section 1962” may sue for treble damages. The statute provides a right of action to “[a]ny person” injured by the violation, suggesting a breadth of coverage not easily reconciled with an implicit requirement that the plaintiff show reliance in addition to injury in his business or property. Moreover, a person can be injured “by reason of” a pattern of mail fraud even if he has not relied on any misrepresentations. This is a case in point. Accepting their allegations as true, respondents clearly were injured by petitioners’ scheme: As a result of petitioners’ fraud, respondents lost valuable liens they otherwise would have been awarded. And this is true even though they did not rely on petitioners’ false attestations of compliance with the county’s rules. Or, to take another example, suppose an enterprise that wants to get rid of rival businesses mails misrepresentations about them to their customers and suppliers, but not to the rivals themselves. If the rival businesses lose money as a result of the misrepresentations, it would certainly seem that they were injured in their business “by reason of” a pattern of mail fraud, even though they never received, and therefore never relied on, the fraudulent mailings. Yet petitioners concede that, on their reading of §1964(c), the rival businesses would have no cause of action under RICO, Tr. of Oral Arg. 4, even though they were the primary and intended victims of the scheme to defraud. Lacking textual support for this counterintuitive position, petitioners rely instead on a combination of common-law rules and policy arguments in an effort to show that Congress should be presumed to have made first-party reliance an element of a civil RICO claim based on mail fraud. None of petitioners’ arguments persuades us to read a first-party reliance requirement into a statute that by its terms suggests none. III A Petitioners first argue that RICO should be read to incorporate a first-party reliance requirement in fraud cases “under the rule that Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Neder, supra, at 23. It has long been settled, they contend, that only the recipient of a fraudulent misrepresentation may recover for common-law fraud, and that he may do so “if, but only if … he relies on the misrepresentation in acting or refraining from action.” Restatement (Second) of Torts §537 (1977). Given this background rule of common law, petitioners maintain, Congress should be presumed to have adopted a first-party reliance requirement when it created a civil cause of action under RICO for victims of mail fraud. In support of this argument, petitioners point to our decision in Beck v. Prupis, 529 U. S. 494 (2000). There, we considered the scope of RICO’s private right of action for violations of §1962(d), which makes it “unlawful for any person to conspire to violate” RICO’s criminal prohibitions. The question presented was “whether a person injured by an overt act in furtherance of a conspiracy may assert a civil RICO conspiracy claim under §1964(c) for a violation of §1962(d) even if the overt act does not constitute ‘racketeering activity.’ ” Id., at 500. Answering this question in the negative, we held that “injury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO is not sufficient to give rise to a cause of action under §1964(c) for a violation of §1962(d).” Id., at 505 (citation omitted). In so doing, we “turn[ed] to the well-established common law of civil conspiracy.” Id., at 500. Because it was “widely accepted” by the time of RICO’s enactment “that a plaintiff could bring suit for civil conspiracy only if he had been injured by an act that was itself tortious,” id., at 501, we presumed “that when Congress established in RICO a civil cause of action for a person ‘injured … by reason of’ a ‘conspir[acy],’ it meant to adopt these well-established common-law civil conspiracy principles.” Id., at 504 (quoting §§1964(c), 1962(d); alterations in original). We specifically declined to rely on the law of criminal conspiracy, relying instead on the law of civil conspiracy: “We have turned to the common law of criminal conspiracy to define what constitutes a violation of §1962(d), see Salinas v. United States, 522 U. S. 52, 63–65 (1997), a mere violation being all that is necessary for criminal liability. This case, however, does not present simply the question of what constitutes a violation of §1962(d), but rather the meaning of a civil cause of action for private injury by reason of such a violation. In other words, our task is to interpret §§1964(c) and 1962(d) in conjunction, rather than §1962(d) standing alone. The obvious source in the common law for the combined meaning of these provisions is the law of civil conspiracy.” Id., at 501, n. 6. Petitioners argue that, as in Beck, we should look to the common-law meaning of civil fraud in order to give content to the civil cause of action §1964(c) provides for private injury by reason of a violation of §1962(c) based on a pattern of mail fraud. The analogy to Beck, however, is misplaced. The critical difference between Beck and this case is that in §1962(d) Congress used a term—“conspir[acy]”—that had a settled common-law meaning, whereas Congress included no such term in §1962(c). Section 1962(c) does not use the term “fraud”; nor does the operative language of §1961(1)(B), which defines “racketeering activity” to include “any act which is indictable under … section 1341.” And the indictable act under §1341 is not the fraudulent misrepresentation, but rather the use of the mails with the purpose of executing or attempting to execute a scheme to defraud. In short, the key term in §1962(c)—“racketeering activity”—is a defined term, and Congress defined the predicate act not as fraud simpliciter, but mail fraud—a statutory offense unknown to the common law. In these circumstances, the presumption that Congress intends to adopt the settled meaning of common-law terms has little pull. Cf. Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. ___, ___ (2008) (slip op., at 11) (rejecting the argument that §10(b) of the Securities Exchange Act of 1934, 15 U. S. C. §78j(b), incorporates common-law fraud). There is simply no “reason to believe that Congress would have defined ‘racketeering activity’ to include acts indictable under the mail and wire fraud statutes, if it intended fraud-related acts to be predicate acts under RICO only when those acts would have been actionable under the common law.” Anza, 547 U. S., at 477–478 (Thomas, J., concurring in part and dissenting in part). Nor does it help petitioners’ cause that here, as in Beck, the question is not simply “what constitutes a violation of §1962[(c)], but rather the meaning of a civil cause of action for private injury by reason of such a violation.” 529 U. S., at 501, n. 6. To be sure, Beck held that a plaintiff cannot state a civil claim for conspiracy under §1964(c) merely by showing a violation of §1962(d) and a resulting injury. But in so doing, Beck relied not only on the fact that the term “conspiracy” had a settled common-law meaning, but also on the well-established common-law understanding of what it means to be injured by a conspiracy for purposes of bringing a civil claim for damages. See id., at 501–504. No comparable understanding exists with respect to injury caused by an enterprise conducting its affairs through a pattern of acts indictable as mail fraud. And even the common-law understanding of injury caused by fraud does not support petitioners’ argument. As discussed infra, at 16–17, the common law has long recognized that plaintiffs can recover in a variety of circumstances where, as here, their injuries result directly from the defendant’s fraudulent misrepresentations to a third party. For these reasons, we reject petitioners’ contention that the “common-law meaning” rule dictates that reliance by the plaintiff is an element of a civil RICO claim predicated on a violation of the mail fraud statute. Congress chose to make mail fraud, not common-law fraud, the predicate act for a RICO violation. And “the mere fact that the predicate acts underlying a particular RICO violation happen to be fraud offenses does not mean that reliance, an element of common-law fraud, is also incorporated as an element of a civil RICO claim.” Anza, supra, at 476 (Thomas, J., concurring in part and dissenting in part). B Petitioners next argue that even if Congress did not make first-party reliance an element of a RICO claim predicated on mail fraud, a plaintiff who brings such a claim must show that it relied on the defendant’s misrepresentations in order to establish the requisite element of causation. In Holmes, we recognized that §1964(c)’s “language can, of course, be read to mean that a plaintiff is injured ‘by reason of’ a RICO violation, and therefore may recover, simply on showing that the defendant violated §1962, the plaintiff was injured, and the defendant’s violation was a ‘but for’ cause of plaintiff’s injury.” 503 U. S., at 265–266 (footnote omitted). We nonetheless held that not “all factually injured plaintiffs” may recover under §1964(c). Id., at 266. Because Congress modeled §1964(c) on other provisions that had been interpreted to “requir[e] a showing that the defendant’s violation not only was a ‘but for’ cause of his injury, but was the proximate cause as well,” we concluded that §1964(c) likewise requires the plaintiff to establish proximate cause in order to show injury “by reason of” a RICO violation. Id., at 268. Proximate cause, we explained, is a flexible concept that does not lend itself to “ ‘a black-letter rule that will dictate the result in every case.’ ” Id., at 272, n. 20 (quoting Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 536 (1983)). Instead, we “use[d] ‘proximate cause’ to label generically the judicial tools used to limit a person’s responsibility for the consequences of that person’s own acts,” Holmes, 503 U. S., at 268, with a particular emphasis on the “demand for some direct relation between the injury asserted and the injurious conduct alleged,” ibid.; see also Anza, supra, at 461 (“When a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiff’s injuries”). The direct-relation requirement avoids the difficulties associated with attempting “to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors,” Holmes, 503 U. S., at 269; prevents courts from having “to adopt complicated rules of apportioning damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries,” ibid.; and recognizes the fact that “directly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely,” id., at 269–270.[Footnote 5] Pointing to our reliance on common-law proximate-causation principles in Holmes and Anza, petitioners argue that “[u]nder well-settled common-law principles, proximate cause is established for fraud claims only where the plaintiff can demonstrate that he relied on the misrepresentation.” Brief for Petitioners 28. In support of this argument, petitioners cite Restatement (Second) of Torts §548A, which provides that “[a] fraudulent misrepresentation is a legal cause of a pecuniary loss resulting from action or inaction in reliance upon it if, but only if, the loss might reasonably be expected to result from the reliance.” Thus, petitioners conclude, “a plaintiff asserting a civil RICO claim predicated on mail fraud cannot satisfy the proximate cause requirement unless he can establish that his injuries resulted from his reliance on the defendant’s fraudulent misrepresentation.” Brief for Petitioners 28. Petitioners’ argument is twice flawed. First, as explained above, the predicate act here is not common-law fraud, but mail fraud. Having rejected petitioners’ argument that reliance is an element of a civil RICO claim based on mail fraud, we see no reason to let that argument in through the back door by holding that the proximate-cause analysis under RICO must precisely track the proximate-cause analysis of a common-law fraud claim. “Reliance is not a general limitation on civil recovery in tort; it ‘is a specialized condition that happens to have grown up with common law fraud.’ ” Anza, 547 U. S., at 477 (Thomas, J., concurring in part and dissenting in part) (quoting Systems Management, 303 F. 3d, at 104). That “specialized condition,” whether characterized as an element of the claim or as a prerequisite to establishing proximate causation, simply has no place in a remedial scheme keyed to the commission of mail fraud, a statutory offense that is distinct from common-law fraud and that does not require proof of reliance. Second, while it may be that first-party reliance is an element of a common-law fraud claim, there is no general common-law principle holding that a fraudulent misrepresentation can cause legal injury only to those who rely on it. The Restatement provision cited by petitioners certainly does not support that proposition. It provides only that the plaintiff’s loss must be a foreseeable result of someone’s reliance on the misrepresentation.[Footnote 6] It does not say that only those who rely on the misrepresentation can suffer a legally cognizable injury. And any such notion would be contradicted by the long line of cases in which courts have permitted a plaintiff directly injured by a fraudulent misrepresentation to recover even though it was a third party, and not the plaintiff, who relied on the defendant’s misrepresentation.[Footnote 7] Indeed, so well established is the defendant’s liability in such circumstances that the Restatement (Second) of Torts sets forth as a “[g]eneral [p]rinciple” that “[o]ne who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances.” §870. As an illustration, the Restatement provides the example of a defendant who “seeks to promote his own interests by telling a known falsehood to or about the plaintiff or his product.” Id., Comment h (emphasis added). And the Restatement specifically recognizes “a cause of action” in favor of the injured party where the defendant “defrauds another for the purpose of causing pecuniary harm to a third person.” Id., §435A, Comment a. Petitioners’ contention that proximate cause has traditionally incorporated a first-party reliance requirement for claims based on fraud cannot be reconciled with these authorities. Nor is first-party reliance necessary to ensure that there is a sufficiently direct relationship between the defendant’s wrongful conduct and the plaintiff’s injury to satisfy the proximate-cause principles articulated in Holmes and Anza. Again, this is a case in point. Respondents’ alleged injury—the loss of valuable liens—is the direct result of petitioners’ fraud. It was a foreseeable and natural consequence of petitioners’ scheme to obtain more liens for themselves that other bidders would obtain fewer liens. And here, unlike in Holmes and Anza, there are no independent factors that account for respondents’ injury, there is no risk of duplicative recoveries by plaintiffs removed at different levels of injury from the violation, and no more immediate victim is better situated to sue. Indeed, both the District Court and the Court of Appeals concluded that respondents and other losing bidders were the only parties injured by petitioners’ misrepresentations. App. to Pet. for Cert. 17a; 477 F. 3d, at 931. Petitioners quibble with that conclusion, asserting that the county would be injured too if the taint of fraud deterred potential bidders from participating in the auction. But that eventuality, in contrast to respondents’ direct financial injury, seems speculative and remote. Of course, none of this is to say that a RICO plaintiff who alleges injury “by reason of” a pattern of mail fraud can prevail without showing that someone relied on the defendant’s misrepresentations. Cf. Field v. Mans, 516 U. S. 59, 66 (1995) (“No one, of course, doubts that some degree of reliance is required to satisfy the element of causation inherent in the phrase ‘obtained by’ ” in 11 U. S. C. §523(a)(2)(A), which prohibits the discharge of debts for money or property “obtained by” fraud). In most cases, the plaintiff will not be able to establish even but-for causation if no one relied on the misrepresentation. If, for example, the county had not accepted petitioners’ false attestations of compliance with the Single, Simultaneous Bidder Rule, and as a result had not permitted petitioners to participate in the auction, respondents’ injury would never have materialized. In addition, the complete absence of reliance may prevent the plaintiff from establishing proximate cause. Thus, for example, if the county knew petitioners’ attestations were false but nonetheless permitted them to participate in the auction, then arguably the county’s actions would constitute an intervening cause breaking the chain of causation between petitioners’ misrepresentations and respondents’ injury. Accordingly, it may well be that a RICO plaintiff alleging injury by reason of a pattern of mail fraud must establish at least third-party reliance in order to prove causation. “But the fact that proof of reliance is often used to prove an element of the plaintiff’s cause of action, such as the element of causation, does not transform reliance itself into an element of the cause of action.” Anza, 547 U. S., at 478 (Thomas, J., concurring in part and dissenting in part). Nor does it transform first-party reliance into an indispensable requisite of proximate causation. Proof that the plaintiff relied on the defendant’s misrepresentations may in some cases be sufficient to establish proximate cause, but there is no sound reason to conclude that such proof is always necessary. By the same token, the absence of first-party reliance may in some cases tend to show that an injury was not sufficiently direct to satisfy §1964(c)’s proximate-cause requirement, but it is not in and of itself dispositive. A contrary holding would ignore Holmes’ instruction that proximate cause is generally not amenable to bright-line rules. C As a last resort, petitioners contend that we should interpret RICO to require first-party reliance for fraud-based claims in order to avoid the “over-federalization” of traditional state-law claims. In petitioners’ view, respondents’ claim is essentially one for tortious interference with prospective business advantage, as evidenced by Count V of their complaint. Such claims have traditionally been handled under state law, and petitioners see no reason why Congress would have wanted to supplement traditional state-law remedies with a federal cause of action, complete with treble damages and attorney’s fees, in a statute designed primarily to combat organized crime. See Anza, supra, at 471–475 (Thomas, J., concurring in part and dissenting in part); Beck, 529 U. S., at 496–497. A first-party reliance requirement, they say, is necessary “to prevent garden-variety disputes between local competitors (such as this case) from being converted into federal racketeering actions.” Reply Brief for Petitioners 3. Whatever the merits of petitioners’ arguments as a policy matter, we are not at liberty to rewrite RICO to reflect their—or our—views of good policy. We have repeatedly refused to adopt narrowing constructions of RICO in order to make it conform to a preconceived notion of what Congress intended to proscribe. See, e.g., National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 252 (1994) (rejecting the argument that “RICO requires proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose”); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 244 (1989) (rejecting “the argument for reading an organized crime limitation into RICO’s pattern concept”); Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 481 (1985) (rejecting the view that RICO provides a private right of action “only against defendants who had been convicted on criminal charges, and only where there had occurred a ‘racketeering injury’ ”). We see no reason to change course here. RICO’s text provides no basis for imposing a first-party reliance requirement. If the absence of such a requirement leads to the undue proliferation of RICO suits, the “correction must lie with Congress.” Id., at 499. “It is not for the judiciary to eliminate the private action in situations where Congress has provided it.” Id., at 499–500. IV For the foregoing reasons, we hold that a plaintiff asserting a RICO claim predicated on mail fraud need not show, either as an element of its claim or as a prerequisite to establishing proximate causation, that it relied on the defendant’s alleged misrepresentations. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Because this case arises from the District Court’s grant of petitioners’ motion to dismiss, we “accept as true all of the factual allegations contained in [respondents’] complaint.” Erickson v. Pardus, 551 U. S. ___, ___ (2007) (per curiam) (slip op., at 5). Footnote 2 The Single, Simultaneous Bidder Rule provides that “one tax buying entity (principal) may not have its/his/her/their actual or apparent agents, employees, or related entities, directly or indirectly register under multiple registrations for the intended or perceived purpose of having more than one person bidding at the tax sale at the same time for the intended or perceived purpose of increasing the principal’s likelihood of obtaining a successful bid on a parcel.” App. 67. The rule defines “Related Bidding Entity” as “any individual, corporation, partnership, joint venture, limited liability company, business organization, or other entity that has a shareholder, partner, principal, officer, general partner or other person or entity having an ownership interest in common with, or contractual relationship with, any other registrant.” Ibid. It further provides that “[t]he determination of whether registered entities are related, so as to prevent the entities from bidding at the same time, is in the sole and exclusive discretion of the Cook County Treasurer or her designated representatives.” Ibid. Footnote 3 Respondents’ complaint does not elaborate on the county’s rotational system. The Court of Appeals described it as follows: “If X bids 0% on ten parcels, and each parcel attracts five bids at that penalty rate, then the County awards X two of the ten parcels. Winners share according to the ratio of their bids to other identical bids.” 477 F. 3d 928, 929 (CA7 2007). Petitioners object that this description is not supported by the record and inappropriately “inject[s] into the case an element of mathematical certainty that is missing from the complaint itself.” Reply Brief for Petitioners 20. While a precise understanding of the county’s system may be necessary to calculate respondents’ damages, nothing in our disposition turns on this issue. For present purposes, it suffices that respondents allege they “suffered the loss of property related to the liens they would have been able to acquire, and the profits flowing therefrom, had [petitioners] not implemented their scheme and acquired liens in excess of their appropriate share through their violation of the County Rule.” App. 50. Footnote 4 The Court considered a civil RICO claim predicated on mail fraud in its recent decision in Anza, 547 U. S. 451. There the Court held that proximate cause is a condition of recovery under 18 U. S. C. §1962(c). The Court did not address the question whether reliance by the plaintiff is a required element of a RICO claim, the matter now before us. Cf. 547 U. S., at 475–478 (Thomas, J., concurring in part and dissenting in part) (reaching the question and concluding that reliance is not an element of a civil RICO claim based on mail fraud). Footnote 5 Applying these principles in Holmes, the Court held that the Securities Investor Protection Corporation (SIPC) could not recover for injuries caused by a stock-manipulation scheme that prevented two broker-dealers from meeting obligations to their customers, thereby triggering SIPC’s duty to reimburse the customers. 503 U. S., at 270–274. And in Anza, the Court applied the principles of Holmes to preclude a company from recovering profits it allegedly lost when a rival business was able to lower its prices because it failed to charge the requisite sales tax on cash sales. 547 U. S., at 456–461. Footnote 6 In addition to Restatement (Second) of Torts §548A (1977), petitioners cite Comment a to that section, which provides that “[c]ausation, in relation to losses incurred by reason of a misrepresentation, is a matter of the recipient’s reliance in fact upon the misrepresentation in taking some action or in refraining from it.” Like §548A itself, however, the comment does not support petitioners’ argument. Of course, a misrepresentation can cause harm only if a recipient of the misrepresentation relies on it. But that does not mean that the only injuries proximately caused by the misrepresentation are those suffered by the recipient. Footnote 7 Such cases include Rice v. Manley, 66 N. Y. 82 (1876) (permitting plaintiffs who had arranged to buy a large quantity of cheese to recover against a defendant who induced the vendor to sell him the cheese by falsely representing to the vendor that plaintiffs no longer wished to purchase it); and Gregory v. Brooks, 35 Conn. 437 (1868) (permitting plaintiff wharf owner to recover against a defendant who, in order to deprive plaintiff of business, misrepresented himself to be a superintendent of wharves and ordered a vessel unloading at plaintiff’s wharf to leave); see also Brief for Respondents 26–29 (collecting cases). Petitioners argue that these cases are irrelevant because they would be treated today as specialized torts, such as wrongful interference with contractual relations, rather than as common-law fraud. See, e.g., Restatement (Second) of Torts §767, Comment c (recognizing that “one [may be] liable to another for intentional interference with economic relations by inducing a third person by fraudulent misrepresentation not to do business with the other”). But petitioners miss the point. The cases are not cited as evidence that common-law fraud can be established without showing first-party reliance. Rather, they—along with the Restatement’s recognition of specialized torts based on third-party reliance—show that a fraudulent misrepresentation can proximately cause actionable injury even to those who do not rely on the misrepresentation.
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553.US.124
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The Controlled Substances Act (CSA) doubles the mandatory minimum sentence for certain federal drug crimes if the defendant was previously convicted of a “felony drug offense.” 21 U. S. C. §841(b)(1)(A). Section 802(13) defines the unadorned term “felony” to mean any “offense classified by applicable Federal or State law as a felony,” while §802(44) defines the compound term “felony drug offense” to “mea[n] an offense [involving specified drugs] that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.” Petitioner Burgess pleaded guilty in federal court to conspiracy to possess with intent to distribute 50 grams or more of cocaine base, an offense that ordinarily carries a 10-year mandatory minimum sentence. Burgess had a prior South Carolina cocaine possession conviction, which carried a maximum sentence of two years but was classified as a misdemeanor under state law. The Federal Government argued that Burgess’ minimum federal sentence should be enhanced to 20 years under §841(b)(1)(A) because his South Carolina conviction was punishable by more than one year’s imprisonment. Burgess countered that because “felony drug offense” incorporates the term “felony,” a word separately defined in §802(13), a prior drug offense does not warrant an enhanced §841(b)(1)(A) sentence unless it is both (1) classified as a felony under the law of the punishing jurisdiction, per §802(13); and (2) punishable by more than one year’s imprisonment, per §802(44). Rejecting that argument, the District Court ruled that §802(44) alone controls the meaning of “felony drug offense” under §841(b)(1)(A). The Fourth Circuit affirmed. Held: Because the term “felony drug offense” in §841(b)(1)(A) is defined exclusively by §802(44) and does not incorporate §802(13)’s definition of “felony,” a state drug offense punishable by more than one year qualifies as a “felony drug offense,” even if state law classifies the offense as a misdemeanor. Pp. 4–11. (a) The CSA’s language and structure indicate that Congress used “felony drug offense” as a term of art defined by §802(44) without reference to §802(13). First, a definition such as §802(44)’s that declares what a term “means” generally excludes any meaning that is not stated. E.g., Colautti v. Franklin, 439 U. S. 379, 392–393, n. 10. Second, because “felony” is commonly defined to mean a crime punishable by imprisonment for more than one year, see, e.g., 18 U. S. C. §3559(a), §802(44)’s definition of “felony drug offense” as “an offense … punishable by imprisonment for more than one year” leaves no blank for §802(13) to fill. Third, if Congress wanted “felony drug offense” to incorporate §802(13)’s definition of “felony,” it easily could have written §802(44) to state: “The term ‘felony drug offense’ means a felony that is punishable by imprisonment for more than one year … .” Fourth, the Court’s reading avoids anomalies that would arise if both §§802(13) and 802(44) governed application of §841(b)(1)(A)’s sentencing enhancement. Section 802(13) includes only federal and state offenses and would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in §841(b)(1)(A). Furthermore, Burgess’ compound definition of “felony drug offense” leaves unanswered the appropriate classification of drug convictions in state and foreign jurisdictions that do not label offenses as felonies or misdemeanors. Finally, the Court’s reading of §802(44) hardly renders §802(13) extraneous; the latter section serves to define “felony” for the many CSA provisions using that unadorned term. Pp. 4–8. (b) The CSA’s drafting history reinforces the Court’s reading. In 1988, Congress first defined “felony drug offense” as, inter alia, “an offense that is a felony under … any law of a State” (emphasis added), but, in 1994, it amended the statutory definition to its present form. By recognizing §802(44) as the exclusive definition of “felony drug offense,” the Court’s reading serves an evident purpose of the 1994 revision: to eliminate disparities resulting from divergent state classifications of offenses by adopting a uniform federal standard based on the authorized term of imprisonment. By contrast, Burgess’ reading of the 1994 alteration as merely adding a length-of-imprisonment requirement to a definition already requiring designation of an offense as a felony by the punishing jurisdiction would attribute to the amendment little practical effect and encounters formidable impediments: the statute’s text and history. Pp. 8–10. (c) Burgess’ argument that the rule of lenity should be applied in determining whether “felony drug offense” incorporates §802(13)’s definition of “felony” is rejected. The touchstone of the rule of lenity is statutory ambiguity. E.g., Bifulco v. United States, 447 U. S. 381, 387. Because Congress expressly defined “felony drug offense” in a manner that is coherent, complete, and by all signs exclusive, there is no ambiguity for the rule of lenity to resolve here. Pp. 10–11. 478 F. 3d 658, affirmed. Ginsburg, J., delivered an opinion for a unanimous Court.
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For certain federal drug offenses, the Controlled Substances Act mandates a minimum sentence of imprisonment for 10 years. 21 U. S. C. §841(b)(1)(A). That minimum doubles to 20 years for defendants previously convicted of a “felony drug offense.” Ibid. The question in this case is whether a state drug offense classified as a misdemeanor, but punishable by more than one year’s imprisonment, is a “felony drug offense” as that term is used in §841(b)(1)(A). Two statutory definitions figure in our decision. Section 802(13) defines the unadorned term “felony” to mean any “offense classified by applicable Federal or State law as a felony.” Section 802(44) defines the compound term “felony drug offense” to mean an offense involving specified drugs that is “punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.” The term “felony drug offense” contained in §841(b)(1)(A)’s provision for a 20-year minimum sentence, we hold, is defined exclusively by §802(44) and does not incorporate §802(13)’s definition of “felony.” A state drug offense punishable by more than one year therefore qualifies as a “felony drug offense,” even if state law classifies the offense as a misdemeanor. I Petitioner Keith Lavon Burgess pleaded guilty in the United States District Court for the District of South Carolina to conspiracy to possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U. S. C. §§841(a) and 846.[Footnote 1] A violation of §841(a) involving that quantity of cocaine base ordinarily carries a mandatory minimum sentence of 10 years. §841(b)(1)(A). The minimum sentence increases to 20 years, however, if the crime follows a prior conviction for a “felony drug offense.” Ibid. Burgess had previously been convicted of possessing cocaine in violation of S. C. Code Ann. §44–53–370(c) and (d)(1) (2002 and Supp. 2007). Although that offense carried a maximum sentence of two years’ imprisonment, South Carolina classified it as a misdemeanor. §44–53–370(d)(1). Burgess’ prior South Carolina conviction, the Government urged, raised the minimum sentence for his federal conviction to 20 years. The enhancement was mandatory, the Government maintained, because Congress defined “felony drug offense” to include state cocaine offenses “punishable by imprisonment for more than one year.” 21 U. S. C. §802(44).[Footnote 2] Burgess contested the enhancement of his federal sentence. The term “felony drug offense,” he argued, incorporates the term “felony,” a word separately defined in §802(13) to mean “any Federal or State offense classified by applicable Federal or State law as a felony.” A prior drug offense does not rank as a “felony drug offense,” he contended, unless it is (1) classified as a felony under the law of the punishing jurisdiction, per §802(13); and (2) punishable by more than one year’s imprisonment, per §802(44). Rejecting Burgess’ argument, the District Court ruled that §802(44) alone controls the meaning of “felony drug offense” as that term is used in §841(b)(1)(A). Although the District Court’s ruling subjected Burgess to a 20-year minimum sentence, the Government moved for a downward departure based on Burgess’ substantial assistance in another prosecution. See 18 U. S. C. §3553(e) (2000 ed., Supp. V). The court granted the motion and sentenced Burgess to 156 months’ imprisonment followed by ten years’ supervised release. The United States Court of Appeals for the Fourth Circuit affirmed. The “ ‘commonsense way to interpret “felony drug offense,” ’ ” that court said, “ ‘is by reference to the definition in §802(44).’ ” 478 F. 3d 658, 662 (2007) (quoting United States v. Roberson, 459 F. 3d 39, 52 (CA1 2006)). The Fourth Circuit found nothing in the “plain language or statutory scheme … to indicate that Congress intended ‘felony drug offense’ also to incorporate the definition [of ‘felony’] in §802(13).” 478 F. 3d, at 662. Burgess, proceeding pro se, petitioned for a writ of certiorari. We granted the writ, 552 U. S. ___ (2007), to resolve a split among the Circuits on the question Burgess presents: Does a drug crime classified as a misdemeanor by state law, but punishable by more than one year’s imprisonment, rank as a “felony drug offense” under 21 U. S. C. §841(b)(1)(A)? Compare 478 F. 3d 658 (case below), and Roberson, 459 F. 3d 39 (§802(44) provides exclusive definition of “felony drug offense”), with United States v. West, 393 F. 3d 1302 (CADC 2005) (both §802(13) and §802(44) limit meaning of “felony drug offense”). II A The Controlled Substances Act (CSA), 21 U. S. C. §801 et seq., contains two definitions central to the dispute before us; they bear repetition in full. Section 802(13) provides: “The term ‘felony’ means any Federal or State offense classified by applicable Federal or State law as a felony.” Section 802(44) states: “The term ‘felony drug offense’ means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” Burgess argues here, as he did below, that “felony drug offense,” as used in §841(b)(1)(A), should be construed to incorporate both the definition of “felony” in §802(13) and the definition of “felony drug offense” in §802(44). Under his reading, the §841(b)(1)(A) enhancement is triggered only when the prior conviction is both “classified by applicable Federal or State law as a felony,” §802(13), and “punishable by imprisonment for more than one year,” §802(44). The Government, in contrast, reads §802(44) to provide the exclusive definition of “felony drug offense.” Under the Government’s reading, all defendants whose prior drug crimes were punishable by more than one year in prison would be subject to the §841(b)(1)(A) enhancement, regardless of the punishing jurisdiction’s classification of the offense. The Government’s reading, we are convinced, correctly interprets the statutory text and context. Section 802(44) defines the precise phrase used in §841(b)(1)(A)—“felony drug offense.” “Statutory definitions control the meaning of statutory words … in the usual case.” Lawson v. Suwannee Fruit & S. S. Co., 336 U. S. 198, 201 (1949). See also Stenberg v. Carhart, 530 U. S. 914, 942 (2000) (“When a statute includes an explicit definition, we must follow that definition … .”); 2A N. Singer & J. Singer, Statutes and Statutory Construction §47:7, pp. 298–299, and nn. 2–3 (7th ed. 2007) (hereinafter Singer). The CSA, to be sure, also defines the term “felony.” The language and structure of the statute, however, indicate that Congress used the phrase “felony drug offense” as a term of art defined by §802(44) without reference to §802(13). First, Congress stated that “[t]he term ‘felony drug offense’ means an offense that is punishable by imprisonment for more than one year.” §802(44) (emphasis added). “As a rule, [a] definition which declares what a term ‘means’ … excludes any meaning that is not stated.” Colautti v. Franklin, 439 U. S. 379, 392–393, n. 10 (1979) (some internal quotation marks omitted). See also Groman v. Commissioner, 302 U. S. 82, 86 (1937); 2A Singer §47:7, p. 306, and n. 20. Second, the term “felony” is commonly defined to mean a crime punishable by imprisonment for more than one year. See, e.g., 18 U. S. C. §3559(a) (classifying crimes with a maximum term of more than one year as felonies); Black’s Law Dictionary 651 (8th ed. 2004) (defining “felony” as “[a] serious crime usu[ally] punishable by imprisonment for more than one year or by death”). Section 802(44)’s definition of “felony drug offense” as “an offense … punishable by imprisonment for more than one year,” in short, leaves no blank to be filled by §802(13) or any other definition of “felony.” Third, if Congress wanted “felony drug offense” to incorporate the definition of “felony” in §802(13), it easily could have written §802(44) to state: “The term ‘felony drug offense’ means a felony that is punishable by imprisonment for more than one year … .” See Roberson, 459 F. 3d, at 52. Congress has often used that drafting technique—i.e., repeating a discretely defined word—when it intends to incorporate the definition of a particular word into the definition of a compound expression. See, e.g., 15 U. S. C. §1672(a)–(b) (defining “earnings” and then defining “disposable earnings” as “that part of the earnings” meeting certain criteria); 18 U. S. C. §1956(c)(3)–(4) (defining “transaction” and then defining “financial transaction” as “a transaction which” meets other criteria); §1961(1), (5) (2000 ed. and Supp. V) (defining “racketeering activity” and then defining “pattern of racketeering activity” to require “at least two acts of racketeering activity”).[Footnote 3] Fourth, our reading avoids anomalies that would arise if both 21 U. S. C. §802(13) and §802(44) governed application of the sentencing enhancement in §841(b)(1)(A). Notably, §802(44) includes foreign offenses punishable by more than one year, while §802(13) includes only federal and state offenses. Incorporation of §802(13) into §841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in §802(44)’s definition of “felony drug offense.” Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors. See N. J. Stat. Ann. §2C:1–4 (West 2005); Me. Rev. Stat. Ann., Tit. 17–A, §1252 (Supp. 2007); Brief for United States 35. Burgess’ compound definition of “felony drug offense” leaves unanswered the appropriate classification of drug convictions in those jurisdictions. See, e.g., United States v. Brown, 937 F. 2d 68, 70 (CA2 1991) (relying on New Jersey common law to determine that the State classifies offenses punishable by more than one year as felonies). No such uncertainty arises under the precise definition Congress provided in §802(44). Finally, reading §802(44) as the exclusive definition of “felony drug offense” hardly renders §802(13) extraneous. Section 802(13) serves to define “felony” for many CSA provisions using that unadorned term. See, e.g., §§824(a)(2) (revocation of license to manufacture controlled substances upon conviction of a felony), 843(b) (use of a communication facility to commit a felony), 843(d)(1)–(2) (sentencing enhancements), 843(e) (prohibition on engaging in transactions involving listed chemicals upon conviction of a felony involving those chemicals), 848(c)(1) (definition of “continuing criminal enterprise”), 848(e)(1)(B) (mandatory minimum term for killing a law enforcement officer to avoid prosecution for a felony), 853(d) (rebuttable presumption that property acquired during commission of certain felonies is subject to criminal forfeiture), 878(a)(3) (authority to make warrantless arrest where there is probable cause to believe a felony has been committed). B The drafting history of the CSA reinforces our reading of §802(44) as the exclusive definition of “felony drug offense.” In 1988, Congress first used the term “felony drug offense” to describe the type of prior conviction that would trigger a 20-year mandatory minimum sentence under §841(b)(1)(A). See National Narcotics Leadership Act, Pub. L. 100–690, §6452(a), 102 Stat. 4371. The 1988 definition of the term was placed within §841(b)(1)(A) itself; the definition covered “an offense that is a felony under any … Federal law … or … any law of a State or a foreign country” prohibiting or restricting conduct relating to certain types of drugs. §6452(a)(2), ibid.[Footnote 4] But in 1994, Congress amended the definition, replacing “an offense that is a felony under … any law of a State,” ibid. (emphasis added), with “an offense that is punishable by imprisonment for more than one year under any law … of a State,” Violent Crime Control and Law Enforcement Act, Pub. L. 103–322, §90105(c)–(d), 108 Stat. 1988 (emphasis added). In lieu of incorporation within §841(b)(1)(A), the new definition was placed in a discrete §802 definition section. Ibid. This alteration lends considerable support to our reading of the statute. Before 1994, the definition of “felony drug offense” depended on the vagaries of state-law classifications of offenses as felonies or misdemeanors. The 1994 amendments replaced that definition with a uniform federal standard based on the authorized length of imprisonment. By recognizing §802(44) as the exclusive definition of “felony drug offense,” our reading serves an evident purpose of the 1994 revision: to bring a measure of uniformity to the application of §841(b)(1)(A) by eliminating disparities based on divergent state classifications of offenses. By contrast, Burgess reads the 1994 alteration as merely adding a length-of-imprisonment requirement to a definition that already required—and, he contends, continues to require—designation of an offense as a felony by the punishing jurisdiction. That view, however, is difficult to square with Congress’ deletion of the word “felony” and substitution of the phrase “punishable by imprisonment for more than one year.” If Burgess were correct, moreover, the sole effect of the 1994 change would have been to exclude from the compass of §841(b)(1)(A) the few drug offenses classified as felonies under the law of the punishing jurisdiction but subject to a sentence of one year or less. See Tr. of Oral Arg. 6–8.[Footnote 5] See also Brief for Petitioner 15 (purpose of 1994 alteration was to eliminate enhancement for “truly minor offenses” nonetheless classified as felonies). Burgess concedes that under his reading of the statute “the language that Congress added [in 1994] has very little practical effect,” but defends his interpretation on the ground that Congress labeled the changes “conforming amendments.” Tr. of Oral Arg. 8. See also 108 Stat. 1987; Brief for Petitioner 12. Burgess places more weight on the “Conforming Amendments” caption than it can bear. Congress did not disavow any intent to make substantive changes; rather, the amendments were “conforming” because they harmonized sentencing provisions in the CSA and the Controlled Substances Import and Export Act, 84 Stat. 1285, 21 U. S. C. §951 et seq. Treating the amendments as nonsubstantive would be inconsistent with their text, not to mention Burgess’ own view that §802(44) added a new length-of-imprisonment requirement to the definition of “felony drug offense.” In sum, the 1994 alteration replaced a patchwork of state and foreign classifications with a uniform federal standard based on the authorized term of imprisonment. Burgess’ argument that Congress added something—the definition now in §802(44)—but subtracted nothing encounters formidable impediments: the text and history of the statute. C Burgess urges us to apply the rule of lenity in determining whether the term “felony drug offense” incorporates §802(13)’s definition of “felony.” “[T]he touchstone of the rule of lenity is statutory ambiguity.” Bifulco v. United States, 447 U. S. 381, 387 (1980) (internal quotation marks omitted). “The rule comes into operation at the end of the process of construing what Congress has expressed,” Callanan v. United States, 364 U. S. 587, 596 (1961), and “applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute,” United States v. Shabani, 513 U. S. 10, 17 (1994). Here, Congress expressly defined the term “felony drug offense.” The definition is coherent, complete, and by all signs exclusive. Accordingly, there is no ambiguity for the rule of lenity to resolve. * * * For the reasons stated, the judgment of the Court of Appeals for the Fourth Circuit is Affirmed. Footnote 1 Although Title 21 of the United States Code has not been enacted as positive law, we refer to it rather than the underlying provisions of the Controlled Substances Act, 84 Stat. 1242, as amended, 21 U. S. C. §801 et seq., for the sake of simplicity. The relevant provisions of Title 21 have not changed from the time of Burgess’ offense, and all citations are to the 2000 edition through Supplement V. Footnote 2 Burgess received a one-year suspended sentence for his South Carolina conviction, but does not dispute that the offense was “punishable by imprisonment for more than one year.” §802(44) (emphasis added). Footnote 3 Burgess offers four examples of defined words nested within defined phrases where, he asserts, the definition of the word is embraced within the phrase, although the word is not repeated in the definition of the phrase. See Reply Brief 11–12; Tr. of Oral Arg. 6, 11–12. In all but one of these examples, however, the definition of the phrase is introduced by the word “includes.” See 2 U. S. C. §1301(4), (6), (7); 18 U. S. C. §2266(3)–(4). “[T]he word ‘includes’ is usually a term of enlargement, and not of limitation.” 2A Singer §47:7, p. 305 (some internal quotation marks omitted). Thus “[a] term whose statutory definition declares what it ‘includes’ is more susceptible to extension of meaning … than where”—as in §802(44)—“the definition declares what a term ‘means.’ ” Ibid. See also Groman v. Commissioner, 302 U. S. 82, 86 (1937) (“[W]hen an exclusive definition is intended the word ‘means’ is employed, … whereas here the word used is ‘includes.’ ”). Burgess’ fourth example is also inapposite. The definition of “debtor’s principal residence” in the Bankruptcy Code, he notes, does not repeat the word “debtor,” itself a discretely defined term. See 11 U. S. C. §101(13), (13A) (2000 ed., Supp. V). Section 101(13A) states: “The term ‘debtor’s principal residence’—(A) means a residential structure, including incidental property, without regard to whether that structure is attached to real property; and (B) includes an individual condominium or cooperative unit, a mobile or manufactured home, or trailer.” That definition, unlike 21 U. S. C. §802(44), is incomplete on its face because nothing in the definition of “debtor’s principal residence” elucidates the word “debtor’s.” Given that void and 11 U. S. C. §101(13A)’s placement in the Bankruptcy Code, it is reasonable to assume that Congress wanted courts to read the phrase “debtor’s principal residence” in light of the separate definition of “debtor.” Indeed, a contrary reading would yield the absurd result that every residential structure is a “debtor’s principal residence.” At most, therefore, Burgess’ fourth example illustrates the importance of considering context in applying canons of statutory construction. There may well be other examples lurking in the United States Code of nested terms that draw their meaning from two different statutory provisions without repeating one term in the definition of the other. But “felony drug offense” is not among them. Footnote 4 The full definition stated: “For purposes of this subparagraph, the term ‘felony drug offense’ means an offense that is a felony under any provision of this title or any other Federal law that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances or a felony under any law of a State or a foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, or depressant or stimulant substances.” National Narcotics Leadership Act of 1988, Pub. L. 100–690, §6452(a)(2), 102 Stat. 4371. Footnote 5 The examples provided by Burgess of such atypical categorization, Brief for Petitioner 22, all carry maximum sentences of exactly one year. See Ariz. Rev. Stat. Ann. §§13–701(C)(5) (West 2001), 13–3405(B)(1) (West Supp. 2007); Ohio Rev. Code Ann. §§2925.11(C) (Lexis 2007 Cum. Supp.), 2929.14(A)(5) (Lexis Supp. 2007); N. C. Gen. Stat. Ann. §§15A–1340.17, 90–95(d) (Lexis 2007).
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553.US.442
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Claiming that petitioner CBOCS West, Inc., dismissed him because he is black and because he complained to managers that a black co-employee was also dismissed for race-based reasons, respondent Humphries filed suit charging that CBOCS’ actions violated both Title VII of the Civil Rights Act of 1964 and 42 U. S. C. §1981, the latter of which gives “[a]ll persons … the same right … to make and enforce contracts … as is enjoyed by white citizens.” The District Court dismissed the Title VII claims for failure to timely pay filing fees and granted CBOCS summary judgment on the §1981 claims. The Seventh Circuit affirmed on the direct discrimination claim, but remanded for a trial on Humphries’ §1981 retaliation claim, rejecting CBOCS’ argument that §1981 did not encompass such a claim. Held: Section 1981 encompasses retaliation claims. Pp. 2–14. (a) Because this conclusion rests in significant part upon stare decisis principles, the Court examines the pertinent interpretive history. (1) In 1969, Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 237, as later interpreted and relied on by Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 176, recognized that retaliation actions are encompassed by 42 U. S. C. §1982, which provides that “[a]ll citizens … shall have the same right, … , as is enjoyed by white citizens … to inherit, purchase, lease, sell, hold, and convey real and personal property.” (2) This Court has long interpreted §§1981 and 1982 alike because they were enacted together, have common language, and serve the same purpose of providing black citizens the same legal rights as enjoyed by other citizens. See, e.g., Runyon v. McCrary, 427 U. S. 160, 183, 197, 190. (3) In 1989, Patterson v. McLean Credit Union, 491 U. S. 164, 177, without mention of retaliation, narrowed §1981 by excluding from its scope conduct occurring after formation of the employment contract, where retaliation would most likely be found. Subsequently, Congress enacted the Civil Rights Act of 1991, which was designed to supersede Patterson, see Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383, by explicitly defining §1981’s scope to include post-contract-formation conduct, §1981(b). (4) Since 1991, the Federal Courts of Appeals have uniformly interpreted §1981 as encompassing retaliation actions. Sullivan, as interpreted by Jackson, as well as a long line of related cases where the Court construes §§1981 and 1982 similarly, lead to the conclusion that the view that §1981 encompasses retaliation claims is well embedded in the law. Stare decisis considerations strongly support the Court’s adherence to that view. Such considerations impose a considerable burden on those who would seek a different interpretation that would necessarily unsettle many Court precedents. Pp. 2–8. (b) CBOCS’ several arguments, taken separately or together, cannot justify a departure from this well-embedded interpretation of §1981. First, while CBOCS is correct that §1981’s plain text does not expressly refer to retaliation, that alone is not sufficient to carry the day, given this Court’s long recognition that §1982 provides protection against retaliation; Jackson’s recent holding that Title IX of the Education Amendments of 1972 includes an antiretaliation remedy, despite Title IX’s failure to use the word “retaliation,” 544 U. S., at 173–174, 176; and Sullivan’s refusal to embrace a similar argument, see 396 U. S., at 241. Second, contrary to CBOCS’ assertion, Congress’ failure to include an explicit antiretaliation provision in its 1991 amendment of §1981 does not demonstrate an intention not to cover retaliation, but is more plausibly explained by the fact that, given Sullivan and the new statutory language nullifying Patterson, there was no need to include explicit retaliation language. Third, the argument that applying §1981 to employment-related retaliation actions would create an overlap with Title VII, allegedly allowing a retaliation plaintiff to circumvent Title VII’s detailed administrative and procedural mechanisms and thereby undermine their effectiveness, proves too much. Precisely the same kind of Title VII/§1981 “overlap” and potential circumvention exists in respect to employment-related direct discrimination, yet Congress explicitly and intentionally created that overlap, Alexander v. Gardner-Denver Co., 415 U. S. 36, 48–49. Fourth, contrary to its arguments, CBOCS cannot find support in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 63, and Domino’s Pizza, Inc. v. McDonald, 546 U. S. 470. While Burlington distinguished discrimination based on status (e.g., as women or black persons) from discrimination based on conduct (e.g., whistle-blowing that leads to retaliation), it did not suggest that Congress must separate the two in all events. Moreover, while Domino’s Pizza and other more recent cases may place greater emphasis on statutory language than did Sullivan, any arguable change in interpretive approach would not justify reexamination of well-established prior law under stare decisis principles. Pp. 9–14. 474 F. 3d 387, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined.
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A longstanding civil rights law, first enacted just after the Civil War, provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens.” Rev. Stat. §1977, 42 U. S. C. §1981(a). The basic question before us is whether the provision encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related “right.” We conclude that it does. I The case before us arises out of a claim by respondent, Hedrick G. Humphries, a former assistant manager of a Cracker Barrel restaurant, that CBOCS West, Inc. (Cracker Barrel’s owner) dismissed him (1) because of racial bias (Humphries is a black man) and (2) because he had complained to managers that a fellow assistant manager had dismissed another black employee, Venus Green, for race-based reasons. Humphries timely filed a charge with the Equal Employment Opportunity Commission (EEOC), pursuant to 42 U. S. C. §2000e–5, and received a “right to sue” letter. He then filed a complaint in Federal District Court charging that CBOCS’ actions violated both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the older “equal contract rights” provision here at issue, §1981. The District Court dismissed Humphries’ Title VII claims for failure to pay necessary filing fees on a timely basis. It then granted CBOCS’ motion for summary judgment on Humphries’ two §1981 claims. Humphries appealed. The U. S. Court of Appeals for the Seventh Circuit ruled against Humphries and upheld the District Court’s grant of summary judgment in respect to his direct discrimination claim. But it ruled in Humphries’ favor and remanded for a trial in respect to his §1981 retaliation claim. In doing so, the Court of Appeals rejected CBOCS’ argument that §1981 did not encompass a claim of retaliation. 474 F. 3d 387 (2007). CBOCS sought certiorari, asking us to consider this last-mentioned legal question. And we agreed to do so. See 551 U. S.___ (2007). II The question before us is whether §1981 encompasses retaliation claims. We conclude that it does. And because our conclusion rests in significant part upon principles of stare decisis, we begin by examining the pertinent interpretive history. A The Court first considered a comparable question in 1969, in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229. The case arose under 42 U. S. C. §1982, a statutory provision that Congress enacted just after the Civil War, along with §1981, to protect the rights of black citizens. The provision was similar to §1981 except that it focused, not upon rights to make and to enforce contracts, but rights related to the ownership of property. The statute provides that “[a]ll 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.” §1982. Paul E. Sullivan, a white man, had rented his house to T. R. Freeman, Jr., a black man. He had also assigned Freeman a membership share in a corporation, which permitted the owner to use a private park that the corporation controlled. Because of Freeman’s race, the corporation, Little Hunting Park, Inc., refused to approve the share assignment. And, when Sullivan protested, the association expelled Sullivan and took away his membership shares. Sullivan sued Little Hunting Park, claiming that its actions violated §1982. The Court upheld Sullivan’s claim. It found that the corporation’s refusal “to approve the assignment of the membership share . . . was clearly an interference with Freeman’s [the black lessee’s] right to ‘lease.’ ” 396 U. S., at 237. It added that Sullivan, the white lessor, “has standing to maintain this action,” ibid., because, as the Court had previously said, “the white owner is at times ‘the only effective adversary’ of the unlawful restrictive covenant.” Ibid. (quoting Barrows v. Jackson, 346 U. S. 249 (1953)). The Court noted that to permit the corporation to punish Sullivan “for trying to vindicate the rights of minorities protected by §1982” would give “impetus to the perpetuation of racial restrictions on property.” 396 U. S., at 237. And this Court has made clear that Sullivan stands for the proposition that §1982 encompasses retaliation claims. See Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 176 (2005) (“[I]n Sullivan we interpreted a general prohibition on racial discrimination [in §1982] to cover retaliation against those who advocate the rights of groups protected by that prohibition”). While the Sullivan decision interpreted §1982, our precedents have long construed §§1981 and 1982 similarly. In Runyon v. McCrary, 427 U. S. 160, 173 (1976), the Court considered whether §1981 prohibits private acts of discrimination. Citing Sullivan, along with Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968) and Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U. S. 431 (1973), the Court reasoned that this case law “necessarily requires the conclusion that §1981, like §1982, reaches private conduct.” 427 U. S., at 173. See also id., at 187 (Powell, J., concurring) (“Although [Sullivan and Jones] involved §1982, rather than §1981, I agree that their considered holdings with respect to the purpose and meaning of §1982 necessarily apply to both statutes in view of their common derivation”); id., at 190 (Stevens, J., concurring) (“[I]t would be most incongruous to give those two sections [§§1981 and 1982] a fundamentally different construction”). See also Shaare Tefila Congregation v. Cobb, 481 U. S. 615, 617–618 (1987) (applying to §1982 the discussion and holding of Saint Francis College v. Al-Khazraji, 481 U. S. 604, 609–613 (1987), a case interpreting §1981). As indicated in Runyon, the Court has construed §§1981 and 1982 alike because it has recognized the sister statutes’ common language, origin, and purposes. Like §1981, §1982 traces its origin to §1 of the Civil Rights Act of 1866, 14 Stat. 27. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 383–384 (1982) (noting shared historical roots of the two provisions); Tillman, supra, at 439–440 (same). Like §1981, §1982 represents an immediately post-Civil War legislative effort to guarantee the then newly freed slaves the same legal rights that other citizens enjoy. See General Building Contractors Assn., supra, at 388 (noting strong purposive connection between the two provisions). Like §1981, §1982 uses broad language that says “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens … .” Compare §1981’s language set forth above, supra, at 1. See Jones, supra, at 441, n. 78 (noting the close parallel language of the two provisions). Indeed, §1982 differs from §1981 only in that it refers, not to the “right . . . to make and enforce contracts,” 42 U. S. C. §1981(a), but to the “right . . . to inherit, purchase, lease, sell, hold, and convey real and personal property,” §1982. In light of these precedents, it is not surprising that following Sullivan, federal appeals courts concluded, on the basis of Sullivan or its reasoning, that §1981 encompassed retaliation claims. See, e.g., Choudhury v. Polytechnic Inst. of N. Y., 735 F. 2d 38, 42–43 (CA2 1984); Goff v. Continental Oil Co., 678 F. 2d 593, 598–599 (CA5 1982), overruled, Carter v. South Central Bell, 912 F. 2d 832 (CA5 1990); Winston v. Lear-Siegler, Inc., 558 F. 2d 1266, 1270 (CA6 1977). B In 1989, 20 years after Sullivan, this Court in Patterson v. McLean Credit Union, 491 U. S. 164, significantly limited the scope of §1981. The Court focused upon §1981’s words “to make and enforce contracts” and interpreted the phrase narrowly. It wrote that the statutory phrase did not apply to “conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.” Id., at 177 (emphasis added). The Court added that the word “enforce” does not apply to post-contract-formation conduct unless the discrimination at issue “infects the legal process in ways that prevent one from enforcing contract rights.” Ibid. (emphasis added). Thus §1981 did not encompass the claim of a black employee who charged that her employer had violated her employment contract by harassing her and failing to promote her, all because of her race. Ibid. Since victims of an employer’s retaliation will often have opposed discriminatory conduct taking place after the formation of the employment contract, Patterson’s holding, for a brief time, seems in practice to have foreclosed retaliation claims. With one exception, we have found no federal court of appeals decision between the time we decided Patterson and 1991 that permitted a §1981 retaliation claim to proceed. See, e.g., Walker v. South Central Bell Tel. Co., 904 F. 2d 275, 276 (CA5 1990) (per curiam); Overby v. Chevron USA, Inc., 884 F. 2d 470, 473 (CA9 1989); Sherman v. Burke Contracting, Inc., 891 F. 2d 1527, 1534–1535 (CA11 1990) (per curiam). See also Malhotra v. Cotter & Co., 885 F. 2d 1305, 1312–1314 (CA7 1989) (questioning without deciding the viability of retaliation claims under §1981 after Patterson). But see Hicks v. Brown Group, Inc., 902 F. 2d 630, 635–638 (CA8 1990) (allowing a claim for discriminatory discharge to proceed under §1981), vacated and remanded, 499 U. S. 914 (1991) (ordering reconsideration in light of what became the Eighth Circuit’s en banc opinion in Taggart v. Jefferson Cty. Child Support Enforcement Unit, 935 F. 2d 947 (1991), which held that racially discriminatory discharge claims under §1981 are barred). In 1991, however, Congress weighed in on the matter. Congress passed the Civil Rights Act of 1991, §101, 105 Stat. 1071, with the design to supersede Patterson. Jones v. R. R. Donnelley & Sons Co., 541 U. S. 369, 383 (2004). Insofar as is relevant here, the new law changed 42 U. S. C. §1981 by reenacting the former provision, designating it as §1981(a), and adding a new subsection, (b), which, says: “ ‘Make and enforce contracts’ defined “For purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” An accompanying Senate Report pointed out that the amendment superseded Patterson by adding a new subsection (b) that would “reaffirm that the right ‘to make and enforce contracts’ includes the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.” S. Rep. No. 101–315, p. 6 (1990). Among other things, it would “ensure that Americans may not be harassed, fired or otherwise discriminated against in contracts because of their race.” Ibid. (emphasis added). An accompanying House Report said that in “cutting back the scope of the rights to ‘make’ and ‘enforce’ contracts[,] Patterson . . . has been interpreted to eliminate retaliation claims that the courts had previously recognized under section 1981.” H. R. Rep. No. 102–40, pt. 1, pp. 92–93, n. 92 (1991). It added that the protections that subsection (b) provided, in “the context of employment discrimination … would include, but not be limited to, claims of harassment, discharge, demotion, promotion, transfer, retaliation, and hiring.” Id., at 92 (emphasis added). It also said that the new law “would restore rights to sue for such retaliatory conduct.” Id., at 93, n. 92. After enactment of the new law, the Federal Courts of Appeals again reached a broad consensus that §1981, as amended, encompasses retaliation claims. See, e.g., Hawkins v. 1115 Legal Serv. Care, 163 F. 3d 684, 693 (CA2 1998); Aleman v. Chugach Support Servs., Inc., 485 F. 3d 206, 213–214 (CA4 2007); Foley v. University of Houston System, 355 F. 3d 333, 338–339 (CA5 2003); Johnson v. University of Cincinnati, 215 F. 3d 561, 575–576 (CA6 2000); 474 F. 3d, at 403 (case below); Manatt v. Bank of America, NA, 339 F. 3d 792, 800–801, and n. 11 (CA9 2003); Andrews v. Lakeshore Rehabilitation Hospital, 140 F. 3d 1405, 1411–1413 (CA11 1998). The upshot is this: (1) in 1969, Sullivan, as interpreted by Jackson, recognized that §1982 encompasses a retaliation action; (2) this Court has long interpreted §§1981 and 1982 alike; (3) in 1989, Patterson, without mention of retaliation, narrowed §1981 by excluding from its scope conduct, namely post-contract-formation conduct, where retaliation would most likely be found; but in 1991, Congress enacted legislation that superseded Patterson and explicitly defined the scope of §1981 to include post-contract-formation conduct; and (4) since 1991, the lower courts have uniformly interpreted §1981 as encompassing retaliation actions. C Sullivan, as interpreted and relied upon by Jackson, as well as the long line of related cases where we construe §§1981 and 1982 similarly, lead us to conclude that the view that §1981 encompasses retaliation claims is indeed well embedded in the law. That being so, considerations of stare decisis strongly support our adherence to that view. And those considerations impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many Court precedents. See, e.g., Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 494–495 (1987) (plurality opinion) (describing importance of stare decisis); Patterson, 491 U. S., at 172 (considerations of stare decisis “have special force in the area of statutory interpretation”); John R. Sand & Gravel Co. v. United States, 552 U. S. ___, ___ (2008) (slip op., at 8–9) (same). III In our view, CBOCS’ several arguments, taken separately or together, cannot justify a departure from what we have just described as the well-embedded interpretation of §1981. First, CBOCS points to the plain text of §1981—a text that says that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U. S. C. §1981(a) (emphasis added). CBOCS adds that, insofar as Humphries complains of retaliation, he is complaining of a retaliatory action that the employer would have taken against him whether he was black or white, and there is no way to construe this text to cover that kind of deprivation. Thus the text’s language, CBOCS concludes, simply “does not provide for a cause of action based on retaliation.” Brief for Petitioner 8. We agree with CBOCS that the statute’s language does not expressly refer to the claim of an individual (black or white) who suffers retaliation because he has tried to help a different individual, suffering direct racial discrimination, secure his §1981 rights. But that fact alone is not sufficient to carry the day. After all, this Court has long held that the statutory text of §1981’s sister statute, §1982, provides protection from retaliation for reasons related to the enforcement of the express statutory right. See supra, at 3. Moreover, the Court has recently read another broadly worded civil rights statute, namely, Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U. S. C. §1681 et seq., as including an antiretaliation remedy. In 2005 in Jackson, the Court considered whether statutory language prohibiting “discrimination [on the basis of sex] under any education program or activity receiving Federal financial assistance,” §1681(a), encompassed claims of retaliation for complaints about sex discrimination. 544 U. S., at 173–174. Despite the fact that Title IX does not use the word “retaliation,” the Court held in Jackson that the statute’s language encompassed such a claim, in part because: (1) “Congress enacted Title IX just three years after Sullivan was decided”; (2) it is “ ‘realistic to presume that Congress was thoroughly familiar’ ” with Sullivan; and (3) Congress consequently “ ‘expected its enactment’ ” of Title IX “ ‘to be interpreted in conformity with’ ” Sullivan. Jackson, supra, at 176. The Court in Jackson explicitly rejected the arguments the dissent advances here—that Sullivan was merely a standing case, see post, at 8–11 (opinion of Thomas, J.). Compare Jackson, 544 U. S., at 176, n. 1 (“Sullivan’s holding was not so limited. It plainly held that the white owner could maintain his own private cause of action under §1982 if he could show that he was ‘punished for trying to vindicate the rights of minorities’ ” (emphasis in original)), with id., at 194 (Thomas, J., dissenting). Regardless, the linguistic argument that CBOCS makes was apparent at the time the Court decided Sullivan. See 396 U. S., at 241 (Harlan, J., dissenting) (noting the construction of §1982 in Jones, 392 U. S. 409 was “in no way required by [the statute’s] language,”—one of the bases of Justice Harlan’s dissent in Jones—and further contending that the Court in Sullivan had gone “yet beyond” Jones). And we believe it is too late in the day in effect to overturn the holding in that case (nor does CBOCS ask us to do so) on the basis of a linguistic argument that was apparent, and which the Court did not embrace at that time. Second, CBOCS argues that Congress, in 1991 when it reenacted §1981 with amendments, intended the reenacted statute not to cover retaliation. CBOCS rests this conclusion primarily upon the fact that Congress did not include an explicit antiretaliation provision or the word “retaliation” in the new statutory language—although Congress has included explicit antiretaliation language in other civil rights statutes. See, e.g., National Labor Relations Act, 29 U. S. C. §158(a)(4); Fair Labor Standards Act of 1938, 29 U. S. C. §215(a)(3); Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–3(a); Age Discrimination in Employment Act of 1967, 29 U. S. C. §623(d); Americans with Disabilities Act of 1990, 42 U. S. C. §§12203(a)–(b); Family and Medical Leave Act of 1993, 29 U. S. C. §2615. We believe, however, that the circumstances to which CBOCS points find a far more plausible explanation in the fact that, given Sullivan and the new statutory language nullifying Patterson, there was no need for Congress to include explicit language about retaliation. After all, the 1991 amendments themselves make clear that Congress intended to supersede the result in Patterson and embrace pre-Patterson law. And pre-Patterson law included Sullivan. See Part II, supra. Nothing in the statute’s text or in the surrounding circumstances suggests any congressional effort to supersede Sullivan or the interpretation that courts have subsequently given that case. To the contrary, the amendments’ history indicates that Congress intended to restore that interpretation. See, e.g., H. R. Rep. No. 102–40, at 92 (noting that §1981(b) in the “context of employment discrimination … would include … claims of … retaliation”). Third, CBOCS points out that §1981, if applied to employment-related retaliation actions, would overlap with Title VII. It adds that Title VII requires that those who invoke its remedial powers satisfy certain procedural and administrative requirements that §1981 does not contain. See, e.g., 42 U. S. C. §2000e–5(e)(1) (charge of discrimination must be brought before EEOC within 180 days of the discriminatory act); §2000e–5(f)(1) (suit must be filed within 90 days of obtaining an EEOC right-to-sue letter). And CBOCS says that permitting a §1981 retaliation action would allow a retaliation plaintiff to circumvent Title VII’s “specific administrative and procedural mechanisms,” thereby undermining their effectiveness. Brief for Petitioner 25. This argument, however, proves too much. Precisely the same kind of Title VII/§1981 “overlap” and potential circumvention exists in respect to employment-related direct discrimination. Yet Congress explicitly created the overlap in respect to direct employment discrimination. Nor is it obvious how we can interpret §1981 to avoid employment-related overlap without eviscerating §1981 in respect to non-employment contracts where no such overlap exists. Regardless, we have previously acknowledged a “necessary overlap” between Title VII and §1981. Patterson, 491 U. S., at 181. We have added that the “remedies available under Title VII and under §1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.” Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 461 (1975). We have pointed out that Title VII provides important administrative remedies and other benefits that §1981 lacks. See id., at 457–458 (detailing the benefits of Title VII to those aggrieved by race-based employment discrimination). And we have concluded that “Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.” Alexander v. Gardner-Denver Co., 415 U. S. 36, 48–49 (1974). In a word, we have previously held that the “overlap” reflects congressional design. See ibid. We have no reason to reach a different conclusion in this case. Fourth, CBOCS says it finds support for its position in two of our recent cases, Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006), and Domino’s Pizza, Inc. v. McDonald, 546 U. S. 470 (2006). In Burlington, a Title VII case, we distinguished between discrimination that harms individuals because of “who they are, i.e., their status,” for example, as women or as black persons, and discrimination that harms “individuals based on what they do, i.e., their conduct,” for example, whistle-blowing that leads to retaliation. 548 U. S., at 63. CBOCS says that we should draw a similar distinction here and conclude that §1981 only encompasses status-based discrimination. In Burlington, however, we used the status/conduct distinction to help explain why Congress might have wanted its explicit Title VII antiretaliation provision to sweep more broadly (i.e., to include conduct outside the workplace) than its substantive Title VII (status-based) antidiscrimination provision. Burlington did not suggest that Congress must separate the two in all events. The dissent argues that the distinction made in Burlington is meaningful here because it purportedly “underscores the fact that status-based discrimination and conduct-based retaliation are distinct harms that call for tailored legislative treatment.” Post, at 5. The Court’s construction of a general ban on discrimination such as that contained in §1981 to cover retaliation claims, the dissent continues, would somehow render the separate antiretaliation provisions in other statutes “superfluous.” Ibid. But the Court in Burlington did not find that Title VII’s antiretaliation provision was redundant; it found that the provision had a broader reach than the statute’s substantive provision. And in any case, we have held that “legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander, supra, at 47. See Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U. S. 366, 377 (1979) (“[S]ubstantive rights conferred in the 19th century [civil rights acts] were not withdrawn, sub silentio, by the subsequent passage of the modern statutes”). Accordingly, the Court has accepted overlap between a number of civil rights statutes. See ibid. (discussing interrelation of fair housing provisions of the Civil Rights Act of 1968 and §1982; between §1981 and Title VII). See also supra, at 11–12 (any overlap in reach between §1981 and Title VII, the statute at issue in Burlington, is by congressional design). CBOCS highlights the second case, Domino’s Pizza, along with Patterson, and cites Cort v. Ash, 422 U. S. 66 (1975) and Rodriguez v. United States, 480 U. S. 522 (1987) (per curiam), to show that this Court now follows an approach to statutory interpretation that emphasizes text. And that newer approach, CBOCS claims, should lead us to revisit the holding in Sullivan, an older case, where the Court placed less weight upon the textual language itself. But even were we to posit for argument’s sake that changes in interpretive approach take place from time to time, we could not agree that the existence of such a change would justify reexamination of well-established prior law. Principles of stare decisis, after all, demand respect for precedent whether judicial methods of interpretation change or stay the same. Were that not so, those principles would fail to achieve the legal stability that they seek and upon which the rule of law depends. See, e.g., John R. Sand & Gravel Co., 552 U. S., at ___ (slip op., at 8–9). IV We conclude that considerations of stare decisis strongly support our adherence to Sullivan and the long line of related cases where we interpret §§1981 and 1982 similarly. CBOCS’ arguments do not convince us to the contrary. We consequently hold that 42 U. S. C. §1981 encompasses claims of retaliation. The judgment of the Court of Appeals is affirmed. It is so ordered.
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554.US.60
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Organizations whose members do business with California sued to enjoin enforcement of “Assembly Bill 1889” (AB 1889), which, among other things, prohibits employers that receive state grants or more than $10,000 in state program funds per year from using the funds “to assist, promote, or deter union organizing.” Cal. Govt. Code Ann. §§16645.2(a), 16645.7(a). The District Court granted the plaintiffs partial summary judgment, holding that the National Labor Relations Act (NLRA) pre-empts §§16645.2 and 16645.7 because they regulate employer speech about union organizing under circumstances in which Congress intended free debate. The Ninth Circuit reversed, concluding that Congress did not intend to preclude States from imposing such restrictions on the use of their own funds. Held: Sections 16645.2 and 16645.7 are pre-empted by the NLRA. Pp. 4–16. (a) The NLRA contains no express pre-emption provision, but this Court has held pre-emption necessary to implement federal labor policy where, inter alia, Congress intended particular conduct to “be unregulated because left ‘to be controlled by the free play of economic forces.’ ” Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 140. Pp. 4–5. (b) Sections 16645.2 and 16645.7 are pre-empted under Machinists because they regulate within “a zone protected and reserved for market freedom.” Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc., 507 U. S. 218, 227. In 1947, the Taft-Hartley Act amended the NLRA by, among other things, adding §8(c), which protects from National Labor Relations Board (NLRB) regulation noncoercive speech by both unions and employers about labor organizing. The section both responded to prior NLRB rulings that employers’ attempts to persuade employees not to organize amounted to coercion prohibited as an unfair labor practice by the previous version of §8 and manifested a “congressional intent to encourage free debate on issues dividing labor and management.” Linn v. Plant Guard Workers, 383 U. S. 53, 62. Congress’ express protection of free debate forcefully buttresses the pre-emption analysis in this case. California’s policy judgment that partisan employer speech necessarily interferes with an employee’s choice about union representation is the same policy judgment that Congress renounced when it amended the NLRA to preclude regulation of noncoercive speech as an unfair labor practice. To the extent §§16645.2 and 16645.7 actually further AB 1889’s express goal, they are unequivocally pre-empted. Pp. 5–8. (c) The Ninth Circuit’s reasons for concluding that Machinists did not pre-empt §§16645.2 and 16645.7—(1) that AB 1889’s spending restrictions apply only to the use of state funds, not to their receipt; (2) that Congress did not leave the zone of activity free from all regulation, in that the NLRB still regulates employer speech on the eve of union elections; and (3) that California modeled AB 1889 on federal statutes, e.g., the Workforce Investment Act—are not persuasive. Pp. 8–16. 463 F. 3d 1076, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined.
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A California statute known as “Assembly Bill 1889” (AB 1889) prohibits several classes of employers that receive state funds from using the funds “to assist, promote, or deter union organizing.” See Cal. Govt. Code Ann. §§16645–16649 (West Supp. 2008). The question presented to us is whether two of its provisions—§16645.2, applicable to grant recipients, and §16645.7, applicable to private employers receiving more than $10,000 in program funds in any year—are pre-empted by federal law mandating that certain zones of labor activity be unregulated. I As set forth in the preamble, the State of California enacted AB 1889 for the following purpose: “It is the policy of the state not to interfere with an employee’s choice about whether to join or to be represented by a labor union. For this reason, the state should not subsidize efforts by an employer to assist, promote, or deter union organizing. It is the intent of the Legislature in enacting this act to prohibit an em- ployer from using state funds and facilities for the purpose of influencing employees to support or oppose unionization and to prohibit an employer from seeking to influence employees to support or oppose unionization while those employees are performing work on a state contract.” 2000 Cal. Stats. ch. 872, §1. AB 1889 forbids certain employers that receive state funds—whether by reimbursement, grant, contract, use of state property, or pursuant to a state program—from using such funds to “assist, promote, or deter union organizing.” See Cal. Govt. Code Ann. §§16645.1 to 16645.7. This prohibition encompasses “any attempt by an employer to influence the decision of its employees” regarding “[w]hether to support or oppose a labor organization” and “[w]hether to become a member of any labor organization.” §16645(a). The statute specifies that the spending restriction applies to “any expense, including legal and consulting fees and salaries of supervisors and employees, incurred for . . . an activity to assist, promote, or deter union organizing.” §16646(a). Despite the neutral statement of policy quoted above, AB 1889 expressly exempts “activit[ies] performed” or “expense[s] incurred” in connection with certain undertakings that promote unionization, including “[a]llowing a labor organization or its representatives access to the employer’s facilities or property,” and “[n]egotiating, entering into, or carrying out a voluntary recognition agreement with a labor organization.” §§16647(b), (d). To ensure compliance with the grant and program restrictions at issue in this case, AB 1889 establishes a formidable enforcement scheme. Covered employers must certify that no state funds will be used for prohibited expenditures; the employer must also maintain and provide upon request “records sufficient to show that no state funds were used for those expenditures.” §§16645.2(c), 16645.7(b)–(c). If an employer commingles state and other funds, the statute presumes that any expenditures to assist, promote, or deter union organizing derive in part from state funds on a pro rata basis. §16646(b). Violators are liable to the State for the amount of funds used for prohibited purposes plus a civil penalty equal to twice the amount of those funds. §§16645.2(d), 16645.7(d). Suspected violators may be sued by the state attorney general or any private taxpayer, and prevailing plaintiffs are “entitled to recover reasonable attorney’s fees and costs.” §16645.8(d). II In April 2002, several organizations whose members do business with the State of California (collectively, Chamber of Commerce), brought this action against the California Department of Health Services and appropriate state officials (collectively, the State) to enjoin enforcement of AB 1889. Two labor unions (collectively, AFL–CIO) intervened to defend the statute’s validity. The District Court granted partial summary judgment in favor of the Chamber of Commerce,[Footnote 1] holding that the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U. S. C. §151 et seq. pre-empts Cal. Govt. Code Ann. §16645.2 (concerning grants) and §16645.7 (concerning program funds) because those provisions “regulat[e] employer speech about union organizing under specified circumstances, even though Congress intended free debate.” Chamber of Commerce v. Lockyer, 225 F. Supp. 2d 1199, 1205 (CD Cal. 2002). The Court of Appeals for the Ninth Circuit, after twice affirming the District Court’s judgment, granted rehearing en banc and reversed. See Chamber of Commerce v. Lockyer, 463 F. 3d 1076, 1082 (2006). While the en banc majority agreed that California enacted §§16645.2 and 16645.7 in its capacity as a regulator, and not as a mere proprietor or market participant, see id., at 1082–1085, it concluded that Congress did not intend to preclude States from imposing such restrictions on the use of their own funds, see id., at 1085–1096. We granted certiorari, 552 U. S. ___ (2007), and now reverse. Although the NLRA itself contains no express pre-emption provision, we have held that Congress implicitly mandated two types of pre-emption as necessary to implement federal labor policy. The first, known as Garmon pre-emption, see San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), “is intended to preclude state interference with the National Labor Relations Board’s interpretation and active enforcement of the ‘integrated scheme of regulation’ established by the NLRA.” Golden State Transit Corp. v. Los Angeles, 475 U. S. 608, 613 (1986) (Golden State I). To this end, Garmon pre-emption forbids States to “regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits.” Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 286 (1986). The second, known as Machinists pre-emption, forbids both the National Labor Relations Board (NLRB) and States to regulate conduct that Congress intended “be unregulated because left ‘to be controlled by the free play of economic forces.’ ” Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 140 (1976) (quoting NLRB v. Nash-Finch Co., 404 U. S. 138, 144 (1971)). Machinists pre-emption is based on the premise that “ ‘Congress struck a balance of protection, prohibition, and laissez-faire in respect to union organization, collective bargaining, and labor disputes.’ ” 427 U. S., at 140, n. 4 (quoting Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1352 (1972)). Today we hold that §§16645.2 and 16645.7 are pre-empted under Machinists because they regulate within “a zone protected and reserved for market freedom.” Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc., 507 U. S. 218, 227 (1993) (Boston Harbor). We do not reach the question whether the provisions would also be pre-empted under Garmon. III As enacted in 1935, the NLRA, which was commonly known as the Wagner Act, did not include any provision that specifically addressed the intersection between employee organizational rights and employer speech rights. See 49 Stat. 449. Rather, it was left to the NLRB, subject to review in federal court, to reconcile these interests in its construction of §§7 and 8. Section 7, now codified at 29 U. S. C. §157, provided that workers have the right to organize, to bargain collectively, and to engage in concerted activity for their mutual aid and protection. Section 8(1), now codified at 29 U. S. C. §158(a)(1), made it an “unfair labor practice” for employers to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by section 7.” Among the frequently litigated issues under the Wagner Act were charges that an employer’s attempts to persuade employees not to join a union—or to join one favored by the employer rather than a rival—amounted to a form of coercion prohibited by §8. The NLRB took the position that §8 demanded complete employer neutrality during organizing campaigns, reasoning that any partisan employer speech about unions would interfere with the §7 rights of employees. See 1 J. Higgins, The Developing Labor Law 94 (5th ed. 2006). In 1941, this Court curtailed the NLRB’s aggressive interpretation, clarifying that nothing in the NLRA prohibits an employer “from expressing its view on labor policies or problems” unless the employer’s speech “in connection with other circumstances [amounts] to coercion within the meaning of the Act.” NLRB v. Virginia Elec. & Power Co., 314 U. S. 469, 477 (1941). We subsequently characterized Virginia Electric as recognizing the First Amendment right of employers to engage in noncoercive speech about unionization. Thomas v. Collins, 323 U. S. 516, 537–538 (1945). Notwithstanding these decisions, the NLRB continued to regulate employer speech too restrictively in the eyes of Congress. Concerned that the Wagner Act had pushed the labor relations balance too far in favor of unions, Congress passed the Labor Management Relations Act, 1947 (Taft-Hartley Act). 61 Stat. 136. The Taft-Hartley Act amended §§7 and 8 in several key respects. First, it emphasized that employees “have the right to refrain from any or all” §7 activities. 29 U. S. C. §157. Second, it added §8(b), which prohibits unfair labor practices by unions. 29 U. S. C. §158(b). Third, it added §8(c), which protects speech by both unions and employers from regulation by the NLRB. 29 U. S. C. §158(c). Specifically, §8(c) provides: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.” From one vantage, §8(c) “merely implements the First Amendment,” NLRB v. Gissel Packing Co., 395 U. S. 575, 617 (1969), in that it responded to particular constitutional rulings of the NLRB. See S. Rep. No. 105, 80th Cong., 1st Sess., pt. 2, pp. 23–24 (1947). But its enactment also manifested a “congressional intent to encourage free debate on issues dividing labor and management.” Linn v. Plant Guard Workers, 383 U. S. 53, 62 (1966). It is indicative of how important Congress deemed such “free debate” that Congress amended the NLRA rather than leaving to the courts the task of correcting the NLRB’s decisions on a case-by-case basis. We have characterized this policy judgment, which suffuses the NLRA as a whole, as “favoring uninhibited, robust, and wide-open debate in labor disputes,” stressing that “freewheeling use of the written and spoken word . . . has been expressly fostered by Congress and approved by the NLRB.” Letter Carriers v. Austin, 418 U. S. 264, 272–273 (1974). Congress’ express protection of free debate forcefully buttresses the pre-emption analysis in this case. Under Machinists, congressional intent to shield a zone of activity from regulation is usually found only “implicit[ly] in the structure of the Act,” Livadas v. Bradshaw, 512 U. S. 107, 117, n. 11 (1994), drawing on the notion that “ ‘[w]hat Congress left unregulated is as important as the regulations that it imposed,’ ” Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 110 (1989) (Golden State II) (quoting New York Telephone Co. v. New York State Dept. of Labor, 440 U. S. 519, 552 (1979) (Powell, J., dissenting)). In the case of noncoercive speech, however, the protection is both implicit and explicit. Sections 8(a) and 8(b) demonstrate that when Congress has sought to put limits on advocacy for or against union organization, it has expressly set forth the mechanisms for doing so. Moreover, the amendment to §7 calls attention to the right of employees to refuse to join unions, which implies an underlying right to receive information opposing unionization. Finally, the addition of §8(c) expressly precludes regulation of speech about unionization “so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’ ” Gissel Packing, 395 U. S., at 618. The explicit direction from Congress to leave noncoercive speech unregulated makes this case easier, in at least one respect, than previous NLRA cases because it does not require us “to decipher the presumed intent of Congress in the face of that body’s steadfast silence.” Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180, 188, n. 12 (1978). California’s policy judgment that partisan employer speech necessarily “interfere[s] with an employee’s choice about whether to join or to be represented by a labor union,” 2000 Cal. Stats. ch. 872, §1, is the same policy judgment that the NLRB advanced under the Wagner Act, and that Congress renounced in the Taft-Hartley Act. To the extent §§16645.2 and 16645.7 actually further the express goal of AB 1889, the provisions are unequivocally pre-empted. IV The Court of Appeals concluded that Machinists did not pre-empt §§16645.2 and 16645.7 for three reasons: (1) the spending restrictions apply only to the use of state funds, (2) Congress did not leave the zone of activity free from all regulation, and (3) California modeled AB 1889 on federal statutes. We find none of these arguments persuasive. Use of State Funds In NLRA pre-emption cases, “ ‘judicial concern has necessarily focused on the nature of the activities which the States have sought to regulate, rather than on the method of regulation adopted.’ ” Golden State I, 475 U. S., at 614, n. 5 (quoting Garmon, 359 U. S., at 243; brackets omitted); see also Livadas, 512 U. S., at 119 (“Pre-emption analysis . . . turns on the actual content of [the State’s] policy and its real effect on federal rights”). California plainly could not directly regulate noncoercive speech about unionization by means of an express prohibition. It is equally clear that California may not indirectly regulate such conduct by imposing spending restrictions on the use of state funds. In Gould, we held that Wisconsin’s policy of refusing to purchase goods and services from three-time NLRA violators was pre-empted under Garmon because it imposed a “supplemental sanction” that conflicted with the NLRA’s “ ‘integrated scheme of regulation.’ ” 475 U. S., at 288–289. Wisconsin protested that its debarment statute was “an exercise of the State’s spending power rather than its regulatory power,” but we dismissed this as “a distinction without a difference.” Id., at 287. “[T]he point of the statute [was] to deter labor law violations,” and “for all practical purposes” the spending restriction was “tantamount to regulation.” Id., at 287–289. Wisconsin’s choice “to use its spending power rather than its police power d[id] not significantly lessen the inherent potential for conflict” between the state and federal schemes; hence the statute was pre-empted. Id., at 289. We distinguished Gould in Boston Harbor, holding that the NLRA did not preclude a state agency supervising a construction project from requiring that contractors abide by a labor agreement. We explained that when a State acts as a “market participant with no interest in setting policy,” as opposed to a “regulator,” it does not offend the pre-emption principles of the NLRA. 507 U. S., at 229. In finding that the state agency had acted as a market participant, we stressed that the challenged action “was specifically tailored to one particular job,” and aimed “to ensure an efficient project that would be completed as quickly and effectively as possible at the lowest cost.” Id., at 232. It is beyond dispute that California enacted AB 1889 in its capacity as a regulator rather than a market participant. AB 1889 is neither “specifically tailored to one particular job” nor a “legitimate response to state procurement constraints or to local economic needs.” Gould, 475 U. S., at 291. As the statute’s preamble candidly acknowledges, the legislative purpose is not the efficient procurement of goods and services, but the furtherance of a labor policy. See 2000 Cal. Stats. ch. 872, §1. Although a State has a legitimate proprietary interest in ensuring that state funds are spent in accordance with the purposes for which they are appropriated, this is not the objective of AB 1889. In contrast to a neutral affirmative requirement that funds be spent solely for the purposes of the relevant grant or program, AB 1889 imposes a targeted negative restriction on employer speech about unionization. Furthermore, the statute does not even apply this constraint uniformly. Instead of forbidding the use of state funds for all employer advocacy regarding unionization, AB 1889 permits use of state funds for select employer advocacy activities that promote unions. Specifically, the statute exempts expenses incurred in connection with, inter alia, giving unions access to the workplace, and voluntarily recognizing unions without a secret ballot election. §§16647(b), (d). The Court of Appeals held that although California did not act as a market participant in enacting AB 1889, the NLRA did not pre-empt the statute. It purported to distinguish Gould on the theory that AB 1889 does not make employer neutrality a condition for receiving funds, but instead restricts only the use of funds. According to the Court of Appeals, this distinction matters because when a State imposes a “use” restriction instead of a “receipt” restriction, “an employer has and retains the freedom to spend its own funds however it wishes.” 463 F. 3d, at 1088. California’s reliance on a “use” restriction rather than a “receipt” restriction is, at least in this case, no more consequential than Wisconsin’s reliance on its spending power rather than its police power in Gould. As explained below, AB 1889 couples its “use” restriction with compliance costs and litigation risks that are calculated to make union-related advocacy prohibitively expensive for employers that receive state funds. By making it exceedingly difficult for employers to demonstrate that they have not used state funds and by imposing punitive sanctions for noncompliance, AB 1889 effectively reaches beyond “the use of funds over which California maintains a sovereign interest.” Brief for State Respondents 19. Turning first to the compliance burdens, AB 1889 requires recipients to “maintain records sufficient to show that no state funds were used” for prohibited expenditures, §§16645.2(c), 16645.7(c), and conclusively presumes that any expenditure to assist, promote, or deter union organizing made from “commingled” funds constitutes a violation of the statute, §16646(b). Maintaining “sufficient” records and ensuring segregation of funds is no small feat, given that AB 1889 expansively defines its prohibition to encompass “any expense” incurred in “any attempt” by an employer to “influence the decision of its employees.” §§16645(a), 16646(a). Prohibited expenditures include not only discrete expenses such as legal and consulting fees, but also an allocation of overhead, including “salaries of supervisors and employees,” for any time and resources spent on union-related advocacy. See §16646(a). The statute affords no clearly defined safe harbor, save for expenses incurred in connection with activities that either favor unions or are required by federal or state law. See §16647. The statute also imposes deterrent litigation risks. Significantly, AB 1889 authorizes not only the California Attorney General but also any private taxpayer—including, of course, a union in a dispute with an employer—to bring a civil action against suspected violators for “injunctive relief, damages, civil penalties, and other appropriate equitable relief.” §16645.8. Violators are liable to the State for three times the amount of state funds deemed spent on union organizing. §§16645.2(d), 16645.7(d), 16645.8(a). Prevailing plaintiffs, and certain prevailing taxpayer intervenors, are entitled to recover attorney’s fees and costs, §16645.8(d), which may well dwarf the treble damages award. Consequently, a trivial violation of the statute could give rise to substantial liability. Finally, even if an employer were confident that it had satisfied the recordkeeping and segregation requirements, it would still bear the costs of defending itself against unions in court, as well as the risk of a mistaken adverse finding by the factfinder. In light of these burdens, California’s reliance on a “use” restriction rather than a “receipt” restriction “does not significantly lessen the inherent potential for conflict” between AB 1889 and the NLRA. Gould, 475 U. S., at 289. AB 1889’s enforcement mechanisms put considerable pressure on an employer either to forgo his “free speech right to communicate his views to his employees,” Gissel Packing, 395 U. S., at 617, or else to refuse the receipt of any state funds. In so doing, the statute impermissibly “predicat[es] benefits on refraining from conduct protected by federal labor law,” Livadas, 512 U. S., at 116, and chills one side of “the robust debate which has been protected under the NLRA,” Letter Carriers, 418 U. S., at 275. Resisting this conclusion, the State and the AFL–CIO contend that AB 1889 imposes less onerous recordkeeping restrictions on governmental subsidies than do federal restrictions that have been found not to violate the First Amendment. See Rust v. Sullivan, 500 U. S. 173 (1991); Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983). The question, however, is not whether AB 1889 violates the First Amendment, but whether it “ ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives’ ” of the NLRA. Livadas, 512 U. S., at 120 (quoting Brown v. Hotel Employees, 468 U. S. 491, 501 (1984)). Constitutional standards, while sometimes analogous, are not tailored to address the object of labor pre-emption analysis: giving effect to Congress’ intent in enacting the Wagner and Taft-Hartley Acts. See Livadas, 512 U. S., at 120 (distinguishing standards applicable to the Equal Protection and Due Process Clauses); Gould, 475 U. S., at 290 (Commerce Clause); Linn, 383 U. S., at 67 (First Amendment). Although a State may “choos[e] to fund a program dedicated to advance certain permissible goals,” Rust, 400 U. S., at 194, it is not “permissible” for a State to use its spending power to advance an interest that—even if legitimate “in the absence of the NLRA,” Gould, 475 U. S., at 290—frustrates the comprehensive federal scheme established by that Act. NLRB Regulation We have characterized Machinists pre-emption as “creat[ing] a zone free from all regulations, whether state or federal.” Boston Harbor, 507 U. S., at 226. Stressing that the NLRB has regulated employer speech that takes place on the eve of union elections, the Court of Appeals deemed Machinists inapplicable because “employer speech in the context of organizing” is not a zone of activity that Congress left free from “all regulation.” See 463 F. 3d, at 1089 (citing Peoria Plastic Co., 117 N. L. R. B. 545, 547–548 (1957) (barring employer interviews with employees in their homes immediately before an election); Peerless Plywood Co., 107 N. L. R. B. 427, 429 (1953) (barring employers and unions alike from making election speeches on company time to massed assemblies of employees within the 24-hour period before an election)). The NLRB has policed a narrow zone of speech to ensure free and fair elections under the aegis of §9 of the NLRA, 29 U. S. C. §159. Whatever the NLRB’s regulatory authority within special settings such as imminent elections, however, Congress has clearly denied it the authority to regulate the broader category of noncoercive speech encompassed by AB 1889. It is equally obvious that the NLRA deprives California of this authority, since “ ‘[t]he States have no more authority than the Board to upset the balance that Congress has struck between labor and management.’ ” Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 751 (1985). Federal Statutes Finally, the Court of Appeals reasoned that Congress could not have intended to pre-empt AB 1889 because Congress itself has imposed similar restrictions. See 463 F. 3d, at 1090–1091. Specifically, three federal statutes include provisions that forbid the use of particular grant and program funds “to assist, promote, or deter union organizing.”[Footnote 2] We are not persuaded that these few isolated restrictions, plucked from the multitude of federal spending programs, were either intended to alter or did in fact alter the “ ‘wider contours of federal labor policy.’ ” Metropolitan Life, 471 U. S., at 753. A federal statute will contract the pre-emptive scope of the NLRA if it demonstrates that “Congress has decided to tolerate a substantial measure of diversity” in the particular regulatory sphere. New York Telephone, 440 U. S., at 546 (plurality opinion). In New York Telephone, an employer challenged a state unemployment system that provided benefits to employees absent from work during lengthy strikes. The employer argued that the state system conflicted with the federal labor policy “of allowing the free play of economic forces to operate during the bargaining process.” Id., at 531. We upheld the statute on the basis that the legislative histories of the NLRA and Social Security Act, which were enacted within six weeks of each other, confirmed that “Congress intended that the States be free to authorize, or to prohibit, such payments.” Id., at 544; see also id., at 547 (Brennan, J., concurring in result); id., at 549 (Blackmun, J., concurring in judgment). Indeed, the tension between the Social Security Act and the NLRA suggested that the case could “be viewed as presenting a potential conflict between two federal statutes … rather than between federal and state regulatory statutes.” Id., at 539–540, n. 32. The three federal statutes relied on by the Court of Appeals neither conflict with the NLRA nor otherwise establish that Congress “decided to tolerate a substantial measure of diversity” in the regulation of employer speech. Unlike the States, Congress has the authority to create tailored exceptions to otherwise applicable federal policies, and (also unlike the States) it can do so in a manner that preserves national uniformity without opening the door to a 50-state patchwork of inconsistent labor policies. Consequently, the mere fact that Congress has imposed targeted federal restrictions on union-related advocacy in certain limited contexts does not invite the States to override federal labor policy in other settings. Had Congress enacted a federal version of AB 1889 that applied analogous spending restrictions to all federal grants or expenditures, the pre-emption question would be closer. Cf. Metropolitan Life, 471 U. S., at 755 (citing federal minimum labor standards as evidence that Congress did not intend to pre-empt state minimum labor standards). But none of the cited statutes is Government-wide in scope, none contains comparable remedial provisions, and none contains express pro-union exemptions. * * * The Court of Appeals’ judgment reversing the summary judgment entered for the Chamber of Commerce is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The District Court held that the Chamber of Commerce lacked standing to challenge several provisions of AB 1889 concerning state contractors and public employers. See Chamber of Commerce v. Lockyer, 225 F. Supp. 2d 1199, 1202–1203 (CD Cal. 2002). Footnote 2 See 29 U. S. C. §2931(b)(7) (“Each recipient of funds under [the Workforce Investment Act] shall provide to the Secretary assurances that none of such funds will be used to assist, promote, or deter union organizing”); 42 U. S. C. §9839(e) (“Funds appropriated to carry out [the Head Start Programs Act] shall not be used to assist, promote, or deter union organizing”); §12634(b)(1) (“Assistance provided under [the National Community Service Act] shall not be used by program par- ticipants and program staff to … assist, promote, or deter union organizing”).
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553.US.181
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After Indiana enacted an election law (SEA 483) requiring citizens voting in person to present government-issued photo identification, petitioners filed separate suits challenging the law’s constitutionality. Following discovery, the District Court granted respondents summary judgment, finding the evidence in the record insufficient to support a facial attack on the statute’s validity. In affirming, the Seventh Circuit declined to judge the law by the strict standard set for poll taxes in Harper v. Virginia Bd. of Elections, 383 U. S. 663, finding the burden on voters offset by the benefit of reducing the risk of fraud. Held: The judgment is affirmed. 472 F. 3d 949, affirmed. Justice Stevens, joined by The Chief Justice and Justice Kennedy, concluded that the evidence in the record does not support a facial attack on SEA 483’s validity. Pp. 5–20. (a) Under Harper, even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications. However, “even handed restrictions” protecting the “integrity and reliability of the electoral process itself” satisfy Harper’s standard. Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9. A state law’s burden on a political party, an individual voter, or a discrete class of voters must be justified by relevant and legitimate state interests “sufficiently weighty to justify the limitation.” Norman v. Reed, 502 U. S. 279, 288–289. Pp. 5–7. (b) Each of Indiana’s asserted interests is unquestionably relevant to its interest in protecting the integrity and reliability of the electoral process. The first is the interest in deterring and detecting voter fraud. Indiana has a valid interest in participating in a nationwide effort to improve and modernize election procedures criticized as antiquated and inefficient. Indiana also claims a particular interest in preventing voter fraud in response to the problem of voter registration rolls with a large number of names of persons who are either deceased or no longer live in Indiana. While the record contains no evidence that the fraud SEA 483 addresses—in-person voter impersonation at polling places—has actually occurred in Indiana, such fraud has occurred in other parts of the country, and Indiana’s own experience with voter fraud in a 2003 mayoral primary demonstrates a real risk that voter fraud could affect a close election’s outcome. There is no question about the legitimacy or importance of a State’s interest in counting only eligible voters’ votes. Finally, Indiana’s interest in protecting public confidence in elections, while closely related to its interest in preventing voter fraud, has independent significance, because such confidence encourages citizen participation in the democratic process. Pp. 7–13. (c) The relevant burdens here are those imposed on eligible voters who lack photo identification cards that comply with SEA 483. Because Indiana’s cards are free, the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons—e.g., elderly persons born out-of-state, who may have difficulty obtaining a birth certificate—is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk’s office. Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek. Pp. 13–16. (d) Petitioners bear a heavy burden of persuasion in seeking to invalidate SEA 483 in all its applications. This Court’s reasoning in Washington State Grange v. Washington State Republican Party, 552 U. S. ___, applies with added force here. Petitioners argue that Indiana’s interests do not justify the burden imposed on voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office, but it is not possible to quantify, based on the evidence in the record, either that burden’s magnitude or the portion of the burden that is fully justified. A facial challenge must fail where the statute has a “ ‘plainly legitimate sweep.’ ” Id., at ___. When considering SEA 483’s broad application to all Indiana voters, it “imposes only a limited burden on voters’ rights.” Burdick v. Takushi, 504 U. S. 428, 439. The “precise interests” advanced by Indiana are therefore sufficient to defeat petitioners’ facial challenge. Id., at 434. Pp. 16–20. (e) Valid neutral justifications for a nondiscriminatory law, such as SEA 483, should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. P. 20. Justice Scalia, joined by Justice Thomas and Justice Alito, was of the view that petitioners’ premise that the voter-identification law might have imposed a special burden on some voters is irrelevant. The law should be upheld because its overall burden is minimal and justified. A law respecting the right to vote should be evaluated under the approach in Burdick v. Takushi, 504 U. S. 428, which calls for application of a deferential, “important regulatory interests” standard for nonsevere, nondiscriminatory restrictions, reserving strict scrutiny for laws that severely restrict the right to vote, id., at 433–434. The different ways in which Indiana’s law affects different voters are no more than different impacts of the single burden that the law uniformly imposes on all voters: To vote in person, everyone must have and present a photo identification that can be obtained for free. This is a generally applicable, nondiscriminatory voting regulation. The law’s universally applicable requirements are eminently reasonable because the burden of acquiring, possessing, and showing a free photo identification is not a significant increase over the usual voting burdens, and the State’s stated interests are sufficient to sustain that minimal burden. Pp. 1–6. Stevens, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Kennedy, J., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas and Alito, JJ., joined. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion. * Together with No. 07–25, Indiana Democratic Party et al. v. Rokita, Secretary of State of Indiana, et al., also on certiorari to the same court.
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in which The Chief Justice and Justice Kennedy join. At issue in these cases is the constitutionality of an Indiana statute requiring citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo identification issued by the government. Referred to as either the “Voter ID Law” or “SEA 483,”[Footnote 1] the statute applies to in-person voting at both primary and general elections. The requirement does not apply to absentee ballots submitted by mail, and the statute contains an exception for persons living and voting in a state-licensed facility such as a nursing home. Ind. Code Ann. §3–11–8–25.1(e) (West Supp. 2007). A voter who is indigent or has a religious objection to being photographed may cast a provisional ballot that will be counted only if she executes an appropriate affidavit before the circuit court clerk within 10 days following the election. §§3–11.7–5–1, 3–11.7–5–2.5(c) (West 2006).[Footnote 2] A voter who has photo identification but is unable to present that identification on election day may file a provisional ballot that will be counted if she brings her photo identification to the circuit county clerk’s office within 10 days. §3–11.7–5–2.5(b). No photo identification is required in order to register to vote,[Footnote 3] and the State offers free photo identification to qualified voters able to establish their residence and identity. §9–24–16–10(b) (West Supp. 2007).[Footnote 4] Promptly after the enactment of SEA 483 in 2005, the Indiana Democratic Party and the Marion County Democratic Central Committee (Democrats) filed suit in the Federal District Court for the Southern District of Indiana against the state officials responsible for its enforcement, seeking a judgment declaring the Voter ID Law invalid and enjoining its enforcement. A second suit seeking the same relief was brought on behalf of two elected officials and several nonprofit organizations representing groups of elderly, disabled, poor, and minority voters.[Footnote 5] The cases were consolidated, and the State of Indiana intervened to defend the validity of the statute. The complaints in the consolidated cases allege that the new law substantially burdens the right to vote in violation of the Fourteenth Amendment; that it is neither a necessary nor appropriate method of avoiding election fraud; and that it will arbitrarily disfranchise qualified voters who do not possess the required identification and will place an unjustified burden on those who cannot readily obtain such identification. Second Amended Complaint in No. 1: 05–CV–0634–SEB–VSS (SD Ind.), pp. 6–9 (hereinafter Second Amended Complaint). After discovery, District Judge Barker prepared a comprehensive 70-page opinion explaining her decision to grant defendants’ motion for summary judgment. 458 F. Supp. 2d 775 (SD Ind. 2006). She found that petitioners had “not introduced evidence of a single, individual Indiana resident who will be unable to vote as a result of SEA 483 or who will have his or her right to vote unduly burdened by its requirements.” Id., at 783. She rejected “as utterly incredible and unreliable” an expert’s report that up to 989,000 registered voters in Indiana did not possess either a driver’s license or other acceptable photo identification. Id., at 803. She estimated that as of 2005, when the statute was enacted, around 43,000 Indiana residents lacked a state-issued driver’s license or identification card. Id., at 807.[Footnote 6] A divided panel of the Court of Appeals affirmed. 472 F. 3d 949 (CA7 2007). The majority first held that the Democrats had standing to bring a facial challenge to the constitutionality of SEA 483. Next, noting the absence of any plaintiffs who claimed that the law would deter them from voting, the Court of Appeals inferred that “the motivation for the suit is simply that the law may require the Democratic Party and the other organizational plaintiffs to work harder to get every last one of their supporters to the polls.” Id., at 952. It rejected the argument that the law should be judged by the same strict standard applicable to a poll tax because the burden on voters was offset by the benefit of reducing the risk of fraud. The dissenting judge, viewing the justification for the law as “hollow”—more precisely as “a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic”—would have applied a stricter standard, something he described as “close to ‘strict scrutiny light.’ ” Id., at 954, 956 (opinion of Evans, J.). In his view, the “law imposes an undue burden on a recognizable segment of potential eligible voters” and therefore violates their rights under the First and Fourteenth Amendments to the Constitution. Id., at 956–957. Four judges voted to grant a petition for rehearing en banc. 484 F. 3d 437 (CA7 2007) (Wood, J., dissenting from denial of rehearing en banc). Because we agreed with their assessment of the importance of these cases, we granted certiorari. 551 U. S. ___ (2007). We are, however, persuaded that the District Court and the Court of Appeals correctly concluded that the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute, and thus affirm.[Footnote 7] I In Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966), the Court held that Virginia could not condition the right to vote in a state election on the payment of a poll tax of $1.50. We rejected the dissenters’ argument that the interest in promoting civic responsibility by weeding out those voters who did not care enough about public affairs to pay a small sum for the privilege of voting provided a rational basis for the tax. See id., at 685 (opinion of Harlan, J.). Applying a stricter standard, we concluded that a State “violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.” Id., at 666 (opinion of the Court). We used the term “invidiously discriminate” to describe conduct prohibited under that standard, noting that we had previously held that while a State may obviously impose “reasonable residence restrictions on the availability of the ballot,” it “may not deny the opportunity to vote to a bona fide resident merely because he is a member of the armed services.” Id., at 666–667 (citing Carrington v. Rash, 380 U. S. 89, 96 (1965)). Although the State’s justification for the tax was rational, it was invidious because it was irrelevant to the voter’s qualifications. Thus, under the standard applied in Harper, even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications. In Anderson v. Celebrezze, 460 U. S. 780 (1983), however, we confirmed the general rule that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself” are not invidious and satisfy the standard set forth in Harper. 460 U. S., at 788, n. 9. Rather than applying any “litmus test” that would neatly separate valid from invalid restrictions, we concluded that a court must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the “hard judgment” that our adversary system demands. In later election cases we have followed Anderson’s balancing approach. Thus, in Norman v. Reed, 502 U. S. 279, 288–289 (1992), after identifying the burden Illinois imposed on a political party’s access to the ballot, we “called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation,” and concluded that the “severe restriction” was not justified by a narrowly drawn state interest of compelling importance. Later, in Burdick v. Takushi, 504 U. S. 428 (1992), we applied Anderson’s standard for “ ‘reasonable, nondiscriminatory restrictions,’ ” 504 U. S., at 434, and upheld Hawaii’s prohibition on write-in voting despite the fact that it prevented a significant number of “voters from participating in Hawaii elections in a meaningful manner.” Id., at 443 (Kennedy, J., dissenting). We reaffirmed Anderson’s requirement that a court evaluating a constitutional challenge to an election regulation weigh the asserted injury to the right to vote against the “ ‘precise interests put forward by the State as justifications for the burden imposed by its rule.’ ” 504 U. S., at 434 (quoting Anderson, 460 U. S., at 789).[Footnote 8] In neither Norman nor Burdick did we identify any litmus test for measuring the severity of a burden that a state law imposes on a political party, an individual voter, or a discrete class of voters. However slight that burden may appear, as Harper demonstrates, it must be justified by relevant and legitimate state interests “sufficiently weighty to justify the limitation.” Norman, 502 U. S., at 288–289. We therefore begin our analysis of the con- stitutionality of Indiana’s statute by focusing on those interests. II The State has identified several state interests that arguably justify the burdens that SEA 483 imposes on voters and potential voters. While petitioners argue that the statute was actually motivated by partisan concerns and dispute both the significance of the State’s interests and the magnitude of any real threat to those interests, they do not question the legitimacy of the interests the State has identified. Each is unquestionably relevant to the State’s interest in protecting the integrity and reliability of the electoral process. The first is the interest in deterring and detecting voter fraud. The State has a valid interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient.[Footnote 9] The State also argues that it has a particular interest in preventing voter fraud in response to a problem that is in part the product of its own maladministration—namely, that Indiana’s voter registration rolls include a large number of names of persons who are either deceased or no longer live in Indiana. Finally, the State relies on its interest in safeguarding voter confidence. Each of these interests merits separate comment. Election Modernization Two recently enacted federal statutes have made it necessary for States to reexamine their election procedures. Both contain provisions consistent with a State’s choice to use government-issued photo identification as a relevant source of information concerning a citizen’s eligibility to vote. In the National Voter Registration Act of 1993 (NVRA), 107 Stat. 77, 42 U. S. C. §1973gg et seq., Congress established procedures that would both increase the number of registered voters and protect the integrity of the electoral process. §1973gg. The statute requires state motor vehicle driver’s license applications to serve as voter registration applications. §1973gg–3. While that requirement has increased the number of registered voters, the statute also contains a provision restricting States’ ability to remove names from the lists of registered voters. §1973gg–6(a)(3). These protections have been partly responsible for inflated lists of registered voters. For example, evidence credited by Judge Barker estimated that as of 2004 Indiana’s voter rolls were inflated by as much as 41.4%, see 458 F. Supp. 2d, at 793, and data collected by the Election Assistance Committee in 2004 indicated that 19 of 92 Indiana counties had registration totals exceeding 100% of the 2004 voting-age population, Dept. of Justice Complaint in United States v. Indiana, No. 1:06–cv–1000–RLY–TAB (SD Ind., June 27, 2006), p. 4, App. 313. In HAVA, Congress required every State to create and maintain a computerized statewide list of all registered voters. 42 U. S. C. §15483(a) (2000 ed., Supp. V). HAVA also requires the States to verify voter information contained in a voter registration application and specifies either an “applicant’s driver’s license number” or “the last 4 digits of the applicant’s social security number” as acceptable verifications. §15483(a)(5)(A)(i). If an indi- vidual has neither number, the State is required to assign the applicant a voter identification number. §15483(a)(5)(A)(ii). HAVA also imposes new identification requirements for individuals registering to vote for the first time who submit their applications by mail. If the voter is casting his ballot in person, he must present local election officials with written identification, which may be either “a current and valid photo identification” or another form of documentation such as a bank statement or paycheck. §15483(b)(2)(A). If the voter is voting by mail, he must include a copy of the identification with his ballot. A voter may also include a copy of the documentation with his application or provide his driver’s license number or Social Security number for verification. §15483(b)(3). Finally, in a provision entitled “Fail-safe voting,” HAVA authorizes the casting of provisional ballots by challenged voters. §15483(b)(2)(B). Of course, neither HAVA nor NVRA required Indiana to enact SEA 483, but they do indicate that Congress believes that photo identification is one effective method of establishing a voter’s qualification to vote and that the integrity of elections is enhanced through improved technology. That conclusion is also supported by a report issued shortly after the enactment of SEA 483 by the Commission on Federal Election Reform chaired by former President Jimmy Carter and former Secretary of State James A. Baker III, which is a part of the record in these cases. In the introduction to their discussion of voter identification, they made these pertinent comments: “A good registration list will ensure that citizens are only registered in one place, but election officials still need to make sure that the person arriving at a polling site is the same one that is named on the registration list. In the old days and in small towns where everyone knows each other, voters did not need to identify themselves. But in the United States, where 40 million people move each year, and in urban areas where some people do not even know the people living in their own apartment building let alone their precinct, some form of identification is needed. “There is no evidence of extensive fraud in U. S. elections or of multiple voting, but both occur, and it could affect the outcome of a close election. The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important.” Commission on Federal Election Reform, Report, Building Confidence in U. S. Elections §2.5 (Sept. 2005), App. 136–137 (Carter-Baker Report) (footnote omitted).[Footnote 10] Voter Fraud The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists,[Footnote 11] that occasional examples have surfaced in recent years,[Footnote 12] and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor[Footnote 13]—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election. There is no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear. In its brief, the State argues that the inflation of its voter rolls provides further support for its enactment of SEA 483. The record contains a November 5, 2000, newspaper article asserting that as a result of NVRA and “sloppy record keeping,” Indiana’s lists of registered voters included the names of thousands of persons who had either moved, died, or were not eligible to vote because they had been convicted of felonies.[Footnote 14] The conclusion that Indiana has an unusually inflated list of registered voters is supported by the entry of a consent decree in litigation brought by the Federal Government alleging violations of NVRA. Consent Decree and Order in United States v. Indiana, No. 1:06–cv–1000–RLY–TAB (SD Ind., June 27, 2006), App. 299–307. Even though Indiana’s own negligence may have contributed to the serious inflation of its registration lists when SEA 483 was enacted, the fact of inflated voter rolls does provide a neutral and nondiscriminatory reason supporting the State’s decision to require photo identification. Safeguarding Voter Confidence Finally, the State contends that it has an interest in protecting public confidence “in the integrity and legitimacy of representative government.” Brief for State Respondents, No. 07-25, p. 53. While that interest is closely related to the State’s interest in preventing voter fraud, public confidence in the integrity of the electoral process has independent significance, because it encourages citizen participation in the democratic process. As the Carter-Baker Report observed, the “electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.” Supra, at 10. III States employ different methods of identifying eligible voters at the polls. Some merely check off the names of registered voters who identify themselves; others require voters to present registration cards or other documentation before they can vote; some require voters to sign their names so their signatures can be compared with those on file; and in recent years an increasing number of States have relied primarily on photo identification.[Footnote 15] A photo identification requirement imposes some burdens on voters that other methods of identification do not share. For example, a voter may lose his photo identification, may have his wallet stolen on the way to the polls, or may not resemble the photo in the identification because he recently grew a beard. Burdens of that sort arising from life’s vagaries, however, are neither so serious nor so frequent as to raise any question about the constitutionality of SEA 483; the availability of the right to cast a provisional ballot provides an adequate remedy for problems of that character. The burdens that are relevant to the issue before us are those imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirements of SEA 483.[Footnote 16] The fact that most voters already possess a valid driver’s license, or some other form of acceptable identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee to obtain a new photo identification. But just as other States provide free voter registration cards, the photo identification cards issued by Indiana’s BMV are also free. For most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.[Footnote 17] Both evidence in the record and facts of which we may take judicial notice, however, indicate that a somewhat heavier burden may be placed on a limited number of persons. They include elderly persons born out-of-state, who may have difficulty obtaining a birth certificate;[Footnote 18] persons who because of economic or other personal limitations may find it difficult either to secure a copy of their birth certificate or to assemble the other required documentation to obtain a state-issued identification; homeless persons; and persons with a religious objection to being photographed. If we assume, as the evidence suggests, that some members of these classes were registered voters when SEA 483 was enacted, the new identification requirement may have imposed a special burden on their right to vote. The severity of that burden is, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted. To do so, however, they must travel to the circuit court clerk’s office within 10 days to execute the required affidavit. It is unlikely that such a requirement would pose a constitutional problem unless it is wholly unjustified. And even assuming that the burden may not be justified as to a few voters,[Footnote 19] that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek in this litigation. IV Given the fact that petitioners have advanced a broad attack on the constitutionality of SEA 483, seeking relief that would invalidate the statute in all its applications, they bear a heavy burden of persuasion. Only a few weeks ago we held that the Court of Appeals for the Ninth Circuit had failed to give appropriate weight to the magnitude of that burden when it sustained a preelection, facial attack on a Washington statute regulating that State’s primary election procedures. Washington State Grange v. Washington State Republican Party, 552 U. S. ___ (2008). Our reasoning in that case applies with added force to the arguments advanced by petitioners in these cases. Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State’s broad interests in protecting election integrity. Petitioners urge us to ask whether the State’s interests justify the burden imposed on voters who cannot afford or obtain a birth certificate and who must make a second trip to the circuit court clerk’s office after voting. But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified. First, the evidence in the record does not provide us with the number of registered voters without photo identification; Judge Barker found petitioners’ expert’s report to be “utterly incredible and unreliable.” 458 F. Supp. 2d, at 803. Much of the argument about the numbers of such voters comes from extrarecord, postjudgment studies, the accuracy of which has not been tested in the trial court. Further, the deposition evidence presented in the District Court does not provide any concrete evidence of the burden imposed on voters who currently lack photo identification. The record includes depositions of two case managers at a day shelter for homeless persons and the depositions of members of the plaintiff organizations, none of whom expressed a personal inability to vote under SEA 483. A deposition from a named plaintiff describes the difficulty the elderly woman had in obtaining an identification card, although her testimony indicated that she intended to return to the BMV since she had recently obtained her birth certificate and that she was able to pay the birth certificate fee. App. 94. Judge Barker’s opinion makes reference to six other elderly named plaintiffs who do not have photo identifications, but several of these individuals have birth certificates or were born in Indiana and have not indicated how difficult it would be for them to obtain a birth certificate. 458 F. Supp. 2d, at 797–799. One elderly named plaintiff stated that she had attempted to obtain a birth certificate from Tennessee, but had not been successful, and another testified that he did not know how to obtain a birth certificate from North Carolina. The elderly in Indiana, however, may have an easier time obtaining a photo identification card than the nonelderly, see n. 17, supra, and although it may not be a completely acceptable alternative, the elderly in Indiana are able to vote absentee without presenting photo identification. The record says virtually nothing about the difficulties faced by either indigent voters or voters with religious objections to being photographed. While one elderly man stated that he did not have the money to pay for a birth certificate, when asked if he did not have the money or did not wish to spend it, he replied, “both.” App. 211–212. From this limited evidence we do not know the magnitude of the impact SEA 483 will have on indigent voters in Indiana. The record does contain the affidavit of one homeless woman who has a copy of her birth certificate, but was denied a photo identification card because she did not have an address. Id., at 67. But that single affidavit gives no indication of how common the problem is. In sum, on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes “excessively burdensome requirements” on any class of voters. See Storer v. Brown, 415 U. S. 724, 738 (1974).[Footnote 20] A facial challenge must fail where the statute has a “ ‘plainly legitimate sweep.’ ” Washington State Grange, 552 U. S., at ___ (quoting Washington v. Glucksberg, 521 U. S. 702, 739–740, and n. 7 (1997) (Stevens, J., concurring in judgments)). When we consider only the statute’s broad application to all Indiana voters we conclude that it “imposes only a limited burden on voters’ rights.” Burdick, 504 U. S., at 439. The “ ‘precise interests’ ” advanced by the State are therefore sufficient to defeat petitioners’ facial challenge to SEA 483. Id., at 434. Finally we note that petitioners have not demonstrated that the proper remedy—even assuming an unjustified burden on some voters—would be to invalidate the entire statute. When evaluating a neutral, nondiscriminatory regulation of voting procedure, “[w]e must keep in mind that “ ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006) (quoting Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality opinion))” Washington State Grange, 552 U. S., at ___ (slip op., at 8). V In their briefs, petitioners stress the fact that all of the Republicans in the General Assembly voted in favor of SEA 483 and the Democrats were unanimous in opposing it.[Footnote 21] In her opinion rejecting petitioners’ facial challenge, Judge Barker noted that the litigation was the result of a partisan dispute that had “spilled out of the state house into the courts.” 458 F. Supp. 2d, at 783. It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483. If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper. But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators. The state interests identified as justifications for SEA 483 are both neutral and sufficiently strong to require us to reject petitioners’ facial attack on the statute. The application of the statute to the vast majority of Indiana voters is amply justified by the valid interest in protecting “the integrity and reliability of the electoral process.” Anderson, 460 U. S., at 788, n. 9. The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Senate Enrolled Act No. 483, 2005 Ind. Acts p. 2005. Footnote 2 The affidavit must state that (1) the person executing the affidavit is the same individual who cast the provisional ballot on election day; and (2) the affiant is indigent and unable to obtain proof of identification without paying a fee or has a religious objection to being photographed. Ind. Code Ann. §3–11–7.5–2.5(c) (West 2006). If the election board determines that the challenge to the affiant was based solely on a failure to present photo identification, the “county election board shall … find that the voter’s provisional ballot is valid.” §3–11–7.5–2.5(d). Footnote 3 Voters registering to vote for the first time in Indiana must abide by the requirements of the Help America Vote Act of 2002 (HAVA), 116 Stat. 1666, described infra, at 8–9. Footnote 4 Indiana previously imposed a fee on all residents seeking a state-issued photo identification. At the same time that the Indiana Legislature enacted SEA 483, it also directed the Bureau of Motor Vehicles (BMV) to remove all fees for state-issued photo identification for individuals without a driver’s license who are at least 18 years old. See 2005 Ind. Acts p. 2017, §18. Footnote 5 Specifically, the plaintiffs were William Crawford, Joseph Simpson, Concerned Clergy of Indianapolis, Indianapolis Resource Center for Independent Living, Indiana Coalition on Housing and Homeless Issues, Indianapolis Branch of the National Association for the Advancement of Colored People, and United Senior Action of Indiana. Complaint in No. 49012050 4PL01 6207 (Super. Ct. Marion Cty., Ind., Apr. 28, 2005), p. 2. Footnote 6 She added: “In other words, an estimated 99% of Indiana’s voting age population already possesses the necessary photo identification to vote under the requirements of SEA 483.” 458 F. Supp. 2d, at 807. Given the availability of free photo identification and greater public awareness of the new statutory requirement, presumably that percentage has increased since SEA 483 was enacted and will continue to increase in the future. Footnote 7 We also agree with the unanimous view of those judges that the Democrats have standing to challenge the validity of SEA 483 and that there is no need to decide whether the other petitioners also have standing. Footnote 8 Contrary to Justice Scalia’s suggestion, see post, at 2 (opinion concurring in judgment), our approach remains faithful to Anderson and Burdick. The Burdick opinion was explicit in its endorsement and adherence to Anderson, see 504 U. S., at 434, and repeatedly cited Anderson, see 504 U. S., at 436, n. 5, 440, n. 9, 441. To be sure, Burdick rejected the argument that strict scrutiny applies to all laws imposing a burden on the right to vote; but in its place, the Court applied the “ ‘flexible standard’ ” set forth in Anderson. Burdick surely did not create a novel “deferential ‘important regulatory interests’ standard.” See post, at 1–2. Footnote 9 See National Commission on Federal Election Reform, To Assure Pride and Confidence in the Electoral Process 18 (2002) (with Honorary Co-chairs former Presidents Gerald Ford and Jimmy Carter). Footnote 10 The historical perceptions of the Carter-Baker Report can largely be confirmed. The average precinct size in the United States has increased in the last century, suggesting that it is less likely that poll workers will be personally acquainted with voters. For example, at the time Joseph Harris wrote his groundbreaking 1934 report on election administration, Indiana restricted the number of voters in each precinct to 250. J. Harris, Election Administration in the United States 208 (Brookings Institution 1934). An Elec- tion Commission report indicates that Indiana’s average number of registered voters per polling place is currently 1,014. Election Assistance Commission, Final Report of the 2004 Election Day Survey, ch. 13 (Sept. 2005) (Table 13) (hereinafter Final Report) (prepared by Election Data Services, Inc.), online at http:// www.eac.gov/clearinghouse/clearinghouse/2004-election-day-survey (all Internet materials as visited Apr. 16, 2008, and available in Clerk of Court’s case file). In 1930, the major cities that Harris surveyed had an average number of voters per precinct that ranged from 247 to 617. Election Administration in the United States, at 214. While States vary today, most have averages exceeding 1,000, with at least eight States exceeding 2,000 registered voters per polling place. Final Report, ch. 13 (Table 13). Footnote 11 One infamous example is the New York City elections of 1868. William (Boss) Tweed set about solidifying and consolidating his control of the city. One local tough who worked for Boss Tweed, “Big Tim” Sullivan, insisted that his “repeaters” (individuals paid to vote multiple times) have whiskers: “ ‘When you’ve voted ’em with their whiskers on, you take ’em to a barber and scrape off the chin fringe. Then you vote ’em again with the side lilacs and a mustache. Then to a barber again, off comes the sides and you vote ’em a third time with the mustache. If that ain’t enough and the box can stand a few more ballots, clean off the mustache and vote ’em plain face. That makes every one of ’em good for four votes.’ ” A. Callow, The Tweed Ring 210 (1966) (quoting M. Werner, Tammany Hall 439 (1928)). Footnote 12 Judge Barker cited record evidence containing examples from California, Washington, Maryland, Wisconsin, Georgia, Illinois, Pennsylvania, Missouri, Miami, and St. Louis. The Brief of Amici Curiae Brennan Center for Justice et al. in Support of Petitioners addresses each of these examples of fraud. While the brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud. For example, after a hotly contested gubernatorial election in 2004, Washington conducted an investigation of voter fraud and uncovered 19 “ghost voters.” Borders v. King Cty., No. 05–2–00027–3 (Super. Ct. Chelan Cty., Wash., June 6, 2005) (verbatim report of unpublished oral decision), 4 Election L. J. 418, 423 (2005). After a partial investigation of the ghost voting, one voter was confirmed to have committed in-person voting fraud. Le & Nicolosi, Dead Voted in Governor’s Race, Seattle Post-Intelligencer, Jan. 7, 2005, p. A1. Footnote 13 See Pabey v. Pastrick, 816 N. E. 2d 1138, 1151 (Ind. 2006) (holding that a special election was required because one candidate engaged in “a deliberate series of actions . . . making it impossible to determine the candidate who received the highest number of legal votes cast in the election”). According to the uncontested factual findings of the trial court, one of the candidates paid supporters to stand near polling places and encourage voters—especially those who were poor, infirm, or spoke little English—to vote absentee. The supporters asked the voters to contact them when they received their ballots; the supporters then “assisted” the voter in filling out the ballot. Footnote 14 Theobald, Bogus Names Jam Indiana’s Voter List, Indianapolis Star, Nov. 5, 2000, App. 145. Footnote 15 For a survey of state practice, see Brief for Texas et al. as Amici Curiae 10–14, and nn. 1–23. Footnote 16 Ind. Code Ann. §3–5–2–40.5 (West 2006) requires that the document satisfy the following: “(1) The document shows the name of the individual to whom the document was issued, and the name conforms to the name in the individual’s voter registration record. “(2) The document shows a photograph of the individual to whom the document was issued. “(3) The document includes an expiration date, and the document: “(A) is not expired; or “(B) expired after the date of the most recent general election. “(4) The document was issued by the United States or the state of Indiana.” Footnote 17 To obtain a photo identification card a person must present at least one “primary” document, which can be a birth certificate, certificate of naturalization, U. S. veterans photo identification, U. S. military photo identification, or a U. S. passport. Ind. Admin. Code, tit. 140, §7–4–3 (2008). Indiana, like most States, charges a fee for obtaining a copy of one’s birth certificate. This fee varies by county and is currently between $3 and $12. See Indiana State Department of Health Web page, http://www.in.gov/isdh/bdcertifs/lhdfees/toc.htm. Some States charge substantially more. Affidavit of Robert Andrew Ford, App. 12. Footnote 18 As petitioners note, Brief for Petitioners in No. 07–21, p. 17, n. 7, and the State’s “Frequently Asked Questions” Web page states, it appears that elderly persons who can attest that they were never issued a birth certificate may present other forms of identification as their primary document to the Indiana BMV, including Medicaid/Medicare cards and Social Security benefits statements. http://www.in.gov/faqs.htm; see also Ind. Admin. Code, tit. 140, §7–4–3 (“The commissioner or the commissioner’s designee may accept reasonable alternate documents to satisfy the requirements of this rule”). Footnote 19 Presumably most voters casting provisional ballots will be able to obtain photo identifications before the next election. It is, however, difficult to understand why the State should require voters with a faith-based objection to being photographed to cast provisional ballots subject to later verification in every election when the BMV is able to issue these citizens special licenses that enable them to drive without any photo identification. See Ind. Code Ann. 9–24–11–5(c) (West Supp. 2007). Footnote 20 Three comments on Justice Souter’s speculation about the non-trivial burdens that SEA 483 may impose on “tens of thousands” of Indiana citizens, post, at 1 (dissenting opinion), are appropriate. First, the fact that the District Judge estimated that when the statute was passed in 2005, 43,000 citizens did not have photo identification, see 458 F. Supp. 2d 775, 807 (SD Ind. 2006), tells us nothing about the number of free photo identification cards issued since then. Second, the fact that public transportation is not available in some Indiana counties tells us nothing about how often elderly and indigent citizens have an opportunity to obtain a photo identification at the BMV, either during a routine outing with family or friends or during a special visit to the BMV arranged by a civic or political group such as the League of Women Voters or a political party. Further, nothing in the record establishes the distribution of voters who lack photo identification. To the extent that the evidence sheds any light on that issue, it suggests that such voters reside primarily in metropolitan areas, which are served by public transportation in Indiana (the majority of the plaintiffs reside in Indianapolis and several of the organizational plaintiffs are Indianapolis organizations). Third, the indigent, elderly, or disabled need not “journey all the way to their county seat each time they wish to exercise the franchise,” post, at 29, if they obtain a free photo identification card from the BMV. While it is true that obtaining a birth certificate carries with it a financial cost, the record does not provide even a rough estimate of how many indigent voters lack copies of their birth certificates. Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication. Footnote 21 Brief for Petitioners in No. 07–25, pp. 6–9. Fifty-two Republican House members voted for the bill, 45 Democrats voted against, and 3 Democrats were excused from voting. 3 Journal of the House of Representatives of Indiana, Roll Call 259 (Mar. 21, 2005). In the Senate, 33 Republican Senators voted in favor and 17 Democratic Senators voted against. 3 Journal of the Senate of Indiana, Roll Call 417 (Apr. 12, 2005).
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554.US.1
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Petitioner, a native and citizen of Nigeria, alleges that he married an American citizen in 1999. His wife filed an I–130 Petition for Alien Relative on his behalf that was denied in 2003. The Department of Homeland Security (DHS) charged Dada with being removable under the Immigration and Nationality Act for overstaying his temporary nonimmigrant visa. The Immigration Judge (IJ) denied the request for a continuance pending adjudication of a second I–130 petition, found Dada eligible for removal, and granted his request for voluntary departure under 8 U. S. C. §1229c(b). The Board of Immigration Appeals (BIA) affirmed and ordered Dada to depart within 30 days or suffer statutory penalties. Two days before the end of the 30-day period, Dada sought to withdraw his voluntary departure request and filed a motion to reopen removal proceedings under 8 U. S. C. §1229a(c)(7), contending that new and material evidence demonstrated a bona fide marriage and that his case should be continued until resolution of the second I–130 petition. After the voluntary departure period had expired, the BIA denied the request, reasoning that an alien who has been granted voluntary departure but does not depart in a timely fashion is statutorily barred from receiving adjustment of status. It did not consider Dada’s request to withdraw his voluntary departure request. The Fifth Circuit affirmed. Held: An alien must be permitted an opportunity to withdraw a motion for voluntary departure, provided the request is made before expiration of the departure period. Pp. 5–20. (a) Resolution of this case turns on the interaction of two aspects of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996—the alien’s right to file a motion to reopen in removal proceedings and the rules governing voluntary departure. Pp. 5–12. (1) Voluntary departure is discretionary relief that allows certain favored aliens to leave the country willingly. It benefits the Government by, e.g., expediting the departure process and avoiding deportation expenses, and benefits the alien by, e.g., facilitating readmission. To receive these benefits, the alien must depart timely. As relevant here, when voluntary departure is requested at the conclusion of removal proceedings, the departure period may not exceed 60 days. 8 U. S. C. §1229c(b)(2). Pp. 5–9. (2) An alien is permitted to file one motion to reopen, §1229a(c)(7)(A), asking the BIA to change its decision because of newly discovered evidence or changed circumstances. The motion generally must be filed within 90 days of a final administrative removal order, §1229a(c)(7)(C)(1). Although neither the text of §1229c or §1229a(c)(7) nor the applicable legislative history indicates whether Congress intended for an alien granted voluntary departure to be permitted to pursue a motion to reopen, the statutory text plainly guarantees to each alien the right to file “one motion to reopen proceedings under this section,” §1229a(c)(7)(A). Pp. 9–12. (b) Section 1229c(b)(2) unambiguously states that the voluntary departure period “shall not be valid” for more than “60 days,” but says nothing about the motion to reopen; and nothing in the statutes or past usage indicates that voluntary departure or motions to reopen cannot coexist. In reading a statute, the Court must not “look merely to a particular clause,” but consider “in connection with it the whole statute.” Kokoszka v. Belford, 417 U. S. 642, 650. Reading the Act as a whole, and considering the statutory scheme governing voluntary departure alongside §1229a(c)(7)(A)’s right to pursue “one motion to reopen,” the Government’s position that an alien who has agreed to voluntarily depart is not entitled to pursue a motion to reopen is unsustainable. It would render the statutory reopening right a nullity in most voluntary departure cases since it is foreseeable, and quite likely, that the voluntary departure time will expire long before the BIA decides a timely-filed motion to reopen. Absent tolling or some other remedial action by this Court, then, the alien who is granted voluntary departure but whose circumstances have changed in a manner cognizable by a motion to reopen is between Scylla and Charybdis: The alien either may leave the United States in accordance with the voluntary departure order, with the effect that the motion to reopen is deemed withdrawn, or may stay in the United States to pursue the case’s reopening, risking expiration of the departure period and ineligibility for adjustment of status, the underlying relief sought. Because a motion to reopen is meant to ensure a proper and lawful disposition, this Court is reluctant to assume that the voluntary departure statute is designed to make reopening unavailable for the distinct class of deportable aliens most favored by the same law, when the statute’s plain text reveals no such limitation. Pp. 12–16. (c) It is thus necessary to read the Act to preserve the alien’s right to pursue reopening while respecting the Government’s interest in the voluntary departure arrangement’s quid pro quo. There is no statutory authority for petitioner’s proposal to automatically toll the voluntary departure period during the motion to reopen’s pendency. Voluntary departure is an agreed-upon exchange of benefits, much like a settlement agreement. An alien who is permitted to stay past the departure date to wait out the motion to reopen’s adjudication cannot then demand the full benefits of voluntary departure, for the Government’s benefit—a prompt and costless departure—would be lost. It would also invite abuse by aliens who wish to stay in the country but whose cases are unlikely to be reopened. Absent a valid regulation otherwise, the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw from the voluntary departure agreement. The Department of Justice, which has authority to adopt the relevant regulations, has made a preliminary determination that the Act permits an alien to withdraw a voluntary departure application before expiration of the departure period. Although not binding in the present case, this proposed interpretation “warrants respectful consideration.” Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U. S. 473, 497. To safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before the departure period expires, without regard to the motion to reopen’s underlying merits. The alien has the option either to abide by the voluntary departure’s terms, and receive its agreed-upon benefits; or, alternatively, to forgo those benefits and remain in the country to pursue an administrative motion. An alien selecting the latter option gives up the possibility of readmission and becomes subject to the IJ’s alternative order of removal. The alien may be removed by the DHS within 90 days, even if the motion to reopen has yet to be adjudicated. But the alien may request a stay of the removal order, and, though the BIA has discretion to deny a motion for a stay based on the merits of the motion to reopen, it may constitute an abuse of discretion for the BIA to deny a motion for stay where the motion states nonfrivolous grounds for reopening. Though this interpretation still confronts the alien with a hard choice, it avoids both the quixotic results of the Government’s proposal and the elimination of benefits to the Government that would follow from petitioner’s tolling rule. Pp. 16–20. 207 Fed. Appx. 425, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined. Alito, J., filed a dissenting opinion.
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We decide in this case whether an alien who has requested and been granted voluntary departure from the United States, a form of discretionary relief that avoids certain statutory penalties, must adhere to that election and depart within the time prescribed, even if doing so causes the alien to forgo a ruling on a pending, unresolved motion to reopen the removal proceedings. The case turns upon the interaction of relevant provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–546 (IIRIRA or Act). The Act provides that every alien ordered removed from the United States has a right to file one motion to reopen his or her removal proceedings. See 8 U. S. C. §1229a(c)(7) (2000 ed., Supp. V). The statute also provides, however, that if the alien’s request for voluntary departure is granted after he or she is found removable, the alien is required to depart within the period prescribed by immigration officials, which cannot exceed 60 days. See §1229c(b)(2) (2000 ed.). Failure to depart within the prescribed period renders the alien ineligible for certain forms of relief, including adjustment of status, for a period of 10 years. §1229c(d)(1) (2000 ed., Supp. V). Pursuant to regulation, however, departure has the effect of withdrawing the motion to reopen. See 8 CFR §1003.2(d) (2007). Without some means, consistent with the Act, to reconcile the two commands—one directing voluntary departure and the other directing termination of the motion to reopen if an alien departs the United States—an alien who seeks reopening has two poor choices: The alien can remain in the United States to ensure the motion to reopen remains pending, while incurring statutory penalties for overstaying the voluntary departure date; or the alien can avoid penalties by prompt departure but abandon the motion to reopen. The issue is whether Congress intended the statutory right to reopen to be qualified by the voluntary departure process. The alien, who is petitioner here, urges that filing a motion to reopen tolls the voluntary departure period pending the motion’s disposition. We reject this interpretation because it would reconfigure the voluntary departure scheme in a manner inconsistent with the statutory design. We do not have the authority to interpret the statute as petitioner suggests. Still, the conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days remains untenable if these are the only two choices available to the alien. Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires. Petitioner attempted to avail himself of this opportunity below. The Court of Appeals for the Fifth Circuit did not disturb the Board of Immigration Appeals’ (BIA or Board) denial of petitioner’s request to withdraw the voluntary departure election. We now reverse its decision and remand the case. I Petitioner Samson Taiwo Dada, a native and citizen of Nigeria, came to the United States in April 1998 on a temporary nonimmigrant visa. He overstayed it. In 1999, petitioner alleges, he married an American citizen. Petitioner’s wife filed an I–130 Petition for Alien Relative on his behalf. The necessary documentary evidence was not provided, however, and the petition was denied in February 2003. In 2004, the Department of Homeland Security (DHS) charged petitioner with being removable under §237(a)(1)(B) of the Immigration and Nationality Act (INA), 66 Stat. 201, as amended, 8 U. S. C. §1227(a)(1)(B) (2000 ed., Supp. V), for overstaying his visa. Petitioner’s wife then filed a second I–130 petition. The Immigration Judge (IJ) denied petitioner’s request for a continuance pending adjudication of the newly filed I–130 petition and noted that those petitions take an average of about three years to process. The IJ found petitioner to be removable but granted the request for voluntary departure under §1229c(b) (2000 ed.). The BIA affirmed on November 4, 2005, without a written opinion. It ordered petitioner to depart within 30 days or suffer statutory penalties, including a civil fine of not less than $1,000 and not more than $5,000 and ineligibility for relief under §§240A, 240B, 245, 248, and 249 of the INA for a period of 10 years. See App. to Pet. for Cert. 5–6. Two days before expiration of the 30-day period, on December 2, 2005, petitioner sought to withdraw his request for voluntary departure. At the same time he filed with the BIA a motion to reopen removal proceedings under 8 U. S. C. §1229a(c)(7) (2000 ed., Supp. V). He contended that his motion recited new and material evidence demonstrating a bona fide marriage and that his case should be continued until the second I–130 petition was resolved. On February 8, 2006, more than two months after the voluntary departure period expired, the BIA denied the motion to reopen on the ground that petitioner had overstayed his voluntary departure period. Under §240B(d) of the INA, 8 U. S. C. §1229c(d) (2000 ed. and Supp. V), the BIA reasoned, an alien who has been granted voluntary departure but fails to depart in a timely fashion is statutorily barred from applying for and receiving certain forms of discretionary relief, including adjustment of status. See App. to Pet. for Cert. 3–4. The BIA did not address petitioner’s motion to withdraw his request for voluntary departure. The Court of Appeals for the Fifth Circuit affirmed. Dada v. Gonzales, 207 Fed. Appx. 425 (2006) (per curiam). Relying on its decision in Banda-Ortiz v. Gonzales, 445 F. 3d 387 (2006), the court held that the BIA’s reading of the applicable statutes as rendering petitioner ineligible for relief was reasonable. The Fifth Circuit joined the First and Fourth Circuits in concluding that there is no automatic tolling of the voluntary departure period. See Chedad v. Gonzales, 497 F. 3d 57 (CA1 2007); Dekoladenu v. Gonzales, 459 F. 3d 500 (CA4 2006). Four other Courts of Appeals have reached the opposite conclusion. See, e.g., Kanivets v. Gonzales, 424 F. 3d 330 (CA3 2005); Sidikhouya v. Gonzales, 407 F. 3d 950 (CA8 2005); Azarte v. Ashcroft, 394 F. 3d 1278 (CA9 2005); Ugokwe v. United States Atty. Gen., 453 F. 3d 1325 (CA11 2006). We granted certiorari, see Dada v. Keisler, 551 U. S. ___ (2007), to resolve the disagreement among the Court of Appeals. After oral argument we ordered supplemental briefing, see 552 U. S. ___ (2008), to address whether an alien may withdraw his request for voluntary departure before expiration of the departure period. Also after oral argument, on January 10, 2008, petitioner’s second I–130 application was denied by the IJ on the ground that his marriage is a sham, contracted solely to obtain immigration benefits. II Resolution of the questions presented turns on the interaction of two statutory schemes—the statutory right to file a motion to reopen in removal proceedings; and the rules governing voluntary departure. A Voluntary departure is a discretionary form of relief that allows certain favored aliens—either before the conclusion of removal proceedings or after being found deportable—to leave the country willingly. Between 1927 to 2005, over 42 million aliens were granted voluntary departure; almost 13 million of those departures occurred between 1996 and 2005 alone. See Dept. of Homeland Security, Aliens Expelled: Fiscal Years 1892 to 2005, Table 38 (2005), online at http://www.dhs.gov/ximgtn/statistics/ publications/YrBk05En.shtm (all Internet materials as visited June 13, 2008, and available in Clerk of Court’s case file). Voluntary departure was “originally developed by administrative officers, in the absence of a specific mandate in the statute.” 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §74.02[1], p. 74–15 (rev. ed. 2007) (hereinafter Gordon). The practice was first codified in the Alien Registration Act of 1940, §20, 54 Stat. 671. The Alien Registration Act amended §19 of the Immigration Act of Feb. 5, 1917, 39 Stat. 889, to provide that an alien “deportable under any law of the United States and who has proved good moral character for the preceding five years” may be permitted by the Attorney General to “depart the United States to any country of his choice at his own expense, in lieu of deportation.” §20(c), 54 Stat. 672. In 1996, perhaps in response to criticism of immigration officials who had expressed frustration that aliens granted voluntary departure were “permitted to continue their illegal presence in the United States for months, and even years,” Letter from Benjamin G. Habberton, Acting Commissioner on Immigration and Naturalization, to the Executive Director of the President’s Commission on Immigration and Naturalization, reprinted in Hearings before the House of Representatives Committee on the Judiciary, 82d Cong., 2d Sess., 1954 (Comm. Print 1952), Congress curtailed the period of time during which an alien may remain in the United States pending voluntary departure. The Act, as pertinent to voluntary departures requested at the conclusion of removal proceedings, provides: “The Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that— “(A) the alien has been physically present in the United States for a period of at least one year im- mediately preceding the date the notice to appear was served under section 1229(a) of this title; “(B) the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien’s application for voluntary de- parture; “(C) the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4) of this title; and “(D) the alien has established by clear and convinc- ing evidence that the alien has the means to depart the United States and intends to do so.” 8 U. S. C. §1229c(b)(1). See also §1229c(a)(1) (“The Attorney General may permit an alien voluntarily to depart the United States at the alien’s own expense under this subsection” in lieu of being subject to removal proceedings or prior to the completion of those proceedings; the alien need not meet the requirements of §1229c(b)(1) if removability is conceded). When voluntary departure is requested at the conclusion of removal proceedings, as it was in this case, the statute provides a voluntary departure period of not more than 60 days. See §1229c(b)(2). The alien can receive up to 120 days if he or she concedes removability and requests voluntary departure before or during removal proceedings. See §1229c(a)(2)(A). Appropriate immigration authorities may extend the time to depart but only if the voluntary departure period is less than the statutory maximum in the first instance. The voluntary departure period in no event may exceed 60 or 120 days for §1229c(b) and §1229c(a) departures, respectively. See 8 CFR §1240.26(f) (2007) (“Authority to extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is only within the jurisdiction of the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs… . In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in section 240B of the Act”). The voluntary departure period typically does not begin to run until administrative appeals are concluded. See 8 U. S. C. §1101(47)(B) (“The order … shall become final upon the earlier of—(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals”); §1229c(b)(1) (Attorney General may permit voluntary departure at conclusion of removal proceedings); see also 8 CFR §1003.6(a) (2007) (“[T]he decision in any proceeding … from which an appeal to the Board may be taken shall not be executed during the time allowed for the filing of an appeal … ”). In addition some Federal Courts of Appeals have found that they may stay voluntary departure pending consideration of a petition for review on the merits. See, e.g., Thapa v. Gonzales, 460 F. 3d 323, 329–332 (CA2 2006); Obale v. Attorney General of United States, 453 F. 3d 151, 155–157 (CA3 2006). But see Ngarurih v. Ashcroft, 371 F. 3d 182, 194 (CA4 2004). This issue is not presented here, however, and we leave its resolution for another day. Voluntary departure, under the current structure, allows the Government and the alien to agree upon a quid pro quo. From the Government’s standpoint, the alien’s agreement to leave voluntarily expedites the departure process and avoids the expense of deportation—including procuring necessary documents and detaining the alien pending deportation. The Government also eliminates some of the costs and burdens associated with litigation over the departure. With the apparent purpose of assuring that the Government attains the benefits it seeks, the Act imposes limits on the time for voluntary departure, see supra, at 7, and prohibits judicial review of voluntary departure decisions, see 8 U. S. C. §§1229c(f) and 1252(a)(2)(B)(i). Benefits to the alien from voluntary departure are evident as well. He or she avoids extended detention pending completion of travel arrangements; is allowed to choose when to depart (subject to certain constraints); and can select the country of destination. And, of great importance, by departing voluntarily the alien facilitates the possibility of readmission. The practice was first justified as involving “no warrant of deportation … so that if [the alien reapplies] for readmission in the proper way he will not be barred.” 2 National Commission on Law Observance and Enforcement: Report on the Enforcement of the Deportation Laws of the United States 57, 102–103 (1931) (Report No. 5). The current statute likewise allows an alien who voluntarily departs to sidestep some of the penalties attendant to deportation. Under the current Act, an alien involuntarily removed from the United States is ineligible for readmission for a period of 5, 10, or 20 years, depending upon the circumstances of removal. See 8 U. S. C. §1182(a)(9)(A)(i) (“Any alien who has been ordered removed under section 1225(b)(1) of this title or at the end of proceedings under section 1229a of this title initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal … ) is inadmissible”); §1182(a)(9) (A)(ii) (“Any alien not described in clause (i) who—(I) has been ordered removed under section [240] or any other provision of law, or (II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal … is inadmissible”). An alien who makes a timely departure under a grant of voluntary departure, on the other hand, is not subject to these restrictions—although he or she otherwise may be ineligible for readmission based, for instance, on an earlier unlawful presence in the United States, see §1182(a)(9)(B)(i). B A motion to reopen is a form of procedural relief that “asks the Board to change its decision in light of newly discovered evidence or a change in circumstances since the hearing.” 1 Gordon §3.05[8][c]. Like voluntary departure, reopening is a judicial creation later codified by federal statute. An early reference to the procedure was in 1916, when a Federal District Court addressed an alien’s motion to reopen her case to provide evidence of her marriage to a United States citizen. See Ex parte Chan Shee, 236 F. 579 (ND Cal. 1916); see also Chew Hoy Quong v. White, 244 F. 749, 750 (CA9 1917) (addressing an application to reopen to correct discrepancies in testimony). “The reopening of a case by the immigration authorities for the introduction of further evidence” was treated then, as it is now, as “a matter for the exercise of their discretion”; where the alien was given a “full opportunity to testify and to present all witnesses and documentary evidence at the original hearing,” judicial interference was deemed unwarranted. Wong Shong Been v. Proctor, 79 F. 2d 881, 883 (CA9 1935). In 1958, when the BIA was established, the Attorney General promulgated a rule for the reopening and reconsideration of removal proceedings, 8 CFR §3.2, upon which the current regulatory provision is based. See 23 Fed. Reg. 9115, 9118–9119 (1958), final rule codified at 8 CFR §3.2 (1959) (“The Board may on its own motion reopen or reconsider any case in which it has rendered a decision” upon a “written motion”); see also Board of Immigration Appeals: Powers; and Reopening or Reconsideration of Cases, 27 Fed. Reg. 96–97 (Jan. 5, 1962). Until 1996, there was no time limit for requesting the reopening of a case due to the availability of new evidence. Then, in 1990, “fear[ful] that deportable or excludable aliens [were] try[ing] to prolong their stays in the U. S. by filing one type of discretionary relief … after another in immigration proceedings,” Justice Dept. Finds Aliens Not Abusing Requests for Relief, 68 No. 27 Interpreter Releases 907 (July 22, 1991), Congress ordered the Attorney General to “issue regulations with respect to … the period of time in which motions to reopen … may be offered in deportation proceedings,” including “a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions,” §545(d)(1), 104 Stat. 5066. The Attorney General found little evidence of abuse, concluding that requirements for reopening are a disincentive to bad faith filings. See 68 Interpreter Releases, supra. Because “Congress … neither rescinded [n]or amended its mandate to limit the number and time frames of motions,” however, the Department of Justice (DOJ) issued a regulation imposing new time limits and restrictions on filings. The new regulation allowed the alien to file one motion to reopen within 90 days. Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 Fed. Reg. 18900, 18901, 18905 (1996); see 8 CFR §3.2(c) (1996). With the 1996 enactment of the Act, Congress adopted the recommendations of the DOJ with respect to numerical and time limits. The current provision governing motions to reopen states: “(A) In general “An alien may file one motion to reopen proceedings under this section … . “(B) Contents “The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. “(C) Deadline (i) “In general “Except as provided in this subparagraph, the mo-tion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U. S. C. §1229a(c)(7) (2000 ed., Supp. V). To qualify as “new,” §1229a(c)(7)(B), the facts must be “material” and of the sort that “could not have been discovered or presented at the former hearing,” 8 CFR §1003.2(c)(1) (2007); 1 Gordon §3.05[8][c] (“Evidence is not previously unavailable merely because the movant chose not to testify or to present evidence earlier, or because the IJ refused to admit the evidence”). There are narrow exceptions to the 90-day filing period for asylum proceedings and claims of battered spouses, children, and parents, see 8 U. S. C. §§1229a(c)(7)(C)(ii), (iv) (2000 ed., Supp. V), which are not applicable here. The Act, to be sure, limits in significant ways the availability of the motion to reopen. It must be noted, though, that the Act transforms the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien. Nowhere in §1229c(b) or §1229a(c)(7) did Congress discuss the impact of the statutory right to file a motion to reopen on a voluntary departure agreement. And no legislative history indicates what some Members of Congress might have intended with respect to the motion’s status once the voluntary departure period has elapsed. But the statutory text is plain insofar as it guarantees to each alien the right to file “one motion to reopen proceedings under this section.” §1229a(c)(7)(A) (2000 ed., Supp. V). III The Government argues that, by requesting and obtaining permission to voluntarily depart, the alien knowingly surrenders the opportunity to seek reopening. See Brief for Respondent 29–30. Further, according to the Government, petitioner’s proposed rule for tolling the voluntary departure period would undermine the “carefully crafted rules governing voluntary departure,” including the statutory directive that these aliens leave promptly. Id., at 18, 46–47. To be sure, 8 U. S. C. §1229c(b)(2) contains no ambiguity: The period within which the alien may depart voluntarily “shall not be valid for a period exceeding 60 days.” See also 8 CFR §1240.26(f) (2007) (“In no event can the total period of time, including any extension, exceed” the statutory periods prescribed by 8 U. S. C. §1229c(a) and §1229c(b)); §1229c(d) (2000 ed. and Supp. V) (imposing statutory penalties for failure to depart). Further, §1229a(c)(7) does not forbid a scheme under which an alien knowingly relinquishes the right to seek reopening in exchange for other benefits, including those available to the alien under the voluntary departure statute. That does not describe this case, however. Nothing in the statutes or past usage with respect to voluntary departure or motions to reopen indicates they cannot coexist. Neither §1229a(c)(7) nor §1229c(b)(2) says anything about the filing of a motion to reopen by an alien who has requested and been granted the opportunity to voluntarily depart. And there is no other statutory language that would place the alien on notice of an inability to seek the case’s reopening in the event of newly discovered evidence or changed circumstances bearing upon eligibility for relief. In reading a statute we must not “look merely to a particular clause,” but consider “in connection with it the whole statute.” Kokoszka v. Belford, 417 U. S. 642, 650 (1974) (quoting Brown v. Duchesne, 19 How. 183, 194 (1857); internal quotation marks omitted); see also Gozlon-Peretz v. United States, 498 U. S. 395, 407 (1991) (“ ‘In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy’ ” (quoting Crandon v. United States, 494 U. S. 152, 158 (1990))); United States v. Heirs of Boisdoré, 8 How. 113, 122 (1850) (“[W]e 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”). Reading the Act as a whole, and considering the statutory scheme governing voluntary departure alongside the statutory right granted to the alien by 8 U. S. C. §1229a(c)(7)(A) (2000 ed., Supp. V) to pursue “one motion to reopen proceedings,” the Government’s position that the alien is not entitled to pursue a motion to reopen if the alien agrees to voluntarily depart is unsustainable. It would render the statutory right to seek reopening a nullity in most cases of voluntary departure. (And this group is not insignificant in number; between 2002 and 2006, 897,267 aliens were found removable, of which 122,866, or approximately 13.7%, were granted voluntary departure. See DOJ, Executive Office for Immigration Review, FY 2006 Statistical Year Book, at Q 1 (Feb. 2007).) It is foreseeable, and quite likely, that the time allowed for voluntary departure will expire long before the BIA issues a decision on a timely filed motion to reopen. See Proposed Rules, DOJ, Executive Office for Immigration Review, Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review, 72 Fed. Reg. 67674, 67677, and n. 2 (2007) (“As a practical matter, it is often the case that an immigration judge or the Board cannot reasonably be expected to adjudicate a motion to reopen or reconsider during the voluntary departure period”). These practical limitations must be taken into account. In the present case the BIA denied petitioner’s motion to reopen 68 days after he filed the motion—and 66 days after his voluntary departure period had expired. Although the record contains no statistics on the average disposition time for motions to reopen, the number of BIA proceedings has increased over the last two decades, doubling between 1992 and 2000 alone; and, as a result, the BIA’s backlog has more than tripled, resulting in a total of 63,763 undecided cases in 2000. See Dorsey & Whitney LLP, Study Conducted for: the American Bar Association Commission on Immigration Policy, Practice and Pro Bono Re: Board of Immigration Appeals: Procedural Reforms to Improve Case Management 13 (2003), online at http://www.dorsey. com/files/upload/DorseyStudyABA_8mgPDF.pdf. Since 2000, the BIA has adopted new procedures to reduce its backlog and shorten disposition times. In 2002, the DOJ introduced rules to improve case management, including an increase in the number of cases referred to a single Board member and use of summary disposition procedures for cases without basis in law or fact. See BIA: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54878 (2002), final rule codified at 8 CFR §1003 (2006); see also §1003.1(e)(4) (summary affirmance procedures). Nevertheless, on September 30, 2005, there were 33,063 cases pending before the BIA, 18% of which were more than a year old. See FY 2006 Statistical Year Book, supra, at U1. On September 30, 2006, approximately 20% of the cases pending had been filed during fiscal year 2005. See ibid. Whether an alien’s motion will be adjudicated within the 60-day statutory period in all likelihood will depend on pure happenstance—namely, the backlog of the particular Board member to whom the motion is assigned. Cf. United States v. Wilson, 503 U. S. 329, 334 (1992) (arbitrary results are “not to be presumed lightly”). Absent tolling or some other remedial action by the Court, then, the alien who is granted voluntary departure but whose circumstances have changed in a manner cognizable by a motion to reopen is between Scylla and Charybdis: He or she can leave the United States in accordance with the voluntary departure order; but, pursuant to regulation, the motion to reopen will be deemed withdrawn. See 8 CFR §1003.2(d); see also 23 Fed. Reg. 9115, 9118, final rule codified at 8 CFR §3.2 (1958). Alternatively, if the alien wishes to pursue reopening and remains in the United States to do so, he or she risks expiration of the statutory period and ineligibility for adjustment of status, the underlying relief sought. See 8 U. S. C. §1229c(d)(1) (2000 ed., Supp. V) (failure to timely depart renders alien “ineligible, for a period of 10 years,” for cancellation of removal under §240A, adjustment of status under §245, change of nonimmigrant status under §248, and registry under §249 of the INA); see also App. to Pet. for Cert. 3–4 (treating petitioner’s motion to reopen as forfeited for failure to depart). The purpose of a motion to reopen is to ensure a proper and lawful disposition. We must be reluctant to assume that the voluntary departure statute was designed to remove this important safeguard for the distinct class of deportable aliens most favored by the same law. See 8 U. S. C. §§1229c(a)(1), (b)(1)(C) (barring aliens who have committed, inter alia, aggravated felonies or terrorism offenses from receiving voluntary departure); §1229c(b)(1)(B) (requiring an alien who obtains voluntary departure at the conclusion of removal proceedings to demonstrate “good moral character”). This is particularly so when the plain text of the statute reveals no such limitation. See Costello v. INS, 376 U. S. 120, 127–128 (1964) (counseling long hesitation “before adopting a construction of [the statute] which would, with respect to an entire class of aliens, completely nullify a procedure so intrinsic a part of the legislative scheme”); see also Stone v. INS, 514 U. S. 386, 399 (1995) (“Congress might not have wished to impose on the alien” the difficult choice created by treating a motion to reopen as rendering the underlying order nonfinal for purposes of judicial review); INS v. St. Cyr, 533 U. S. 289, 320 (2001) (recognizing “ ‘the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien’ ” (quoting INS v. Cardoza-Fonseca, 480 U. S. 421, 449 (1987))). IV A It is necessary, then, to read the Act to preserve the alien’s right to pursue reopening while respecting the Government’s interest in the quid pro quo of the voluntary departure arrangement. Some solutions, though, do not conform to the statutory design. Petitioner, as noted, proposes automatic tolling of the voluntary departure period during the pendency of the motion to reopen. We do not find statutory authority for this result. Voluntary departure is an agreed-upon exchange of benefits, much like a settlement agreement. In return for anticipated benefits, including the possibility of readmission, an alien who requests voluntary departure represents that he or she “has the means to depart the United States and intends to do so” promptly. 8 U. S. C. §1229c(b)(1)(D); 8 CFR §§1240.26(c)(1)–(2) (2007); cf. §1240.26(c)(3) (the judge may impose additional conditions to “ensure the alien’s timely departure from the United States”). Included among the substantive burdens imposed upon the alien when selecting voluntary departure is the obligation to arrange for departure, and actually depart, within the 60-day period. Cf. United States v. Brockamp, 519 U. S. 347, 352 (1997) (substantive limitations are not subject to equitable tolling). If the alien is permitted to stay in the United States past the departure date to wait out the adjudication of the motion to reopen, he or she cannot then demand the full benefits of voluntary departure; for the benefit to the Government—a prompt and costless departure—would be lost. Furthermore, it would invite abuse by aliens who wish to stay in the country but whose cases are not likely to be reopened by immigration authorities. B Although a statute or regulation might be adopted to resolve the dilemma in a different manner, as matters now stand the appropriate way to reconcile the voluntary departure and motion to reopen provisions is to allow an alien to withdraw the request for voluntary departure before expiration of the departure period. The DOJ, which has authority to adopt regulations relevant to the issue at hand, has made a preliminary determination that the Act permits an alien to withdraw an application for voluntary departure before expiration of the departure period. According to this proposal, there is nothing in the Act or the implementing regulations that makes the grant of voluntary departure irrevocable. See 72 Fed. Reg. 67679. Accordingly, the DOJ has proposed an amendment to 8 CFR §1240.26 that, prospectively, would “provide for the automatic termination of a grant of voluntary departure upon the timely filing of a motion to reopen or reconsider, as long as the motion is filed prior to the expiration of the voluntary departure period.” 72 Fed. Reg. 67679, Part IV–D; cf. id., at 67682, Part VI (“The provisions of this proposed rule will be applied prospectively only, that is, only with respect to immigration judge orders issued on or after the effective date of the final rule that grant a period of voluntary departure”). Although not binding in the present case, the DOJ’s proposed interpretation of the statutory and regulatory scheme as allowing an alien to withdraw from a voluntary departure agreement “warrants respectful consideration.” Wisconsin Dept. of Health and Family Servs. v. Blumer, 534 U. S. 473, 497 (2002) (citing United States v. Mead Corp., 533 U. S. 218 (2001), and Thomas Jefferson Univ. v. Shalala, 512 U. S. 504 (1994)). We hold that, to safeguard the right to pursue a motion to reopen for voluntary departure recipients, the alien must be permitted to withdraw, unilaterally, a voluntary departure request before expiration of the departure period, without regard to the underlying merits of the motion to reopen. As a result, the alien has the option either to abide by the terms, and receive the agreed-upon benefits, of voluntary departure; or, alternatively, to forgo those benefits and remain in the United States to pursue an administrative motion. If the alien selects the latter option, he or she gives up the possibility of readmission and becomes subject to the IJ’s alternate order of removal. See 8 CFR §1240.26(d). The alien may be removed by the Department of Homeland Security within 90 days, even if the motion to reopen has yet to be adjudicated. See 8 U. S. C. §1231(a)(1)(A). But the alien may request a stay of the order of removal, see BIA Practice Manual §6.3(a), online at http:// www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm; cf. 8 U. S. C. §1229a(b)(5)(C) (providing that a removal order entered in absentia is stayed automatically pending a motion to reopen); and, though the BIA has discretion to deny the motion for a stay, it may constitute an abuse of discretion for the BIA to do so where the motion states nonfrivolous grounds for reopening. Though this interpretation still confronts the alien with a hard choice, it avoids both the quixotic results of the Government’s proposal and the elimination of benefits to the Government that would follow from petitioner’s tolling rule. Contrary to the Government’s assertion, the rule we adopt does not alter the quid pro quo between the Government and the alien. If withdrawal is requested prior to expiration of the voluntary departure period, the alien has not received benefits without costs; the alien who withdraws from a voluntary departure arrangement is in the same position as an alien who was not granted voluntary departure in the first instance. Allowing aliens to withdraw from their voluntary departure agreements, moreover, establishes a greater probability that their motions to reopen will be considered. At the same time, it gives some incentive to limit filings to nonfrivolous motions to reopen; for aliens with changed circumstances of the type envisioned by Congress in drafting §1229a(c)(7) (2000 ed. and Supp. V) are the ones most likely to forfeit their previous request for voluntary departure in return for the opportunity to adjudicate their motions. Cf. Supplemental Brief for Respondent 1–2 (“[I]t is extraordinarily rare for an alien who has requested and been granted voluntary departure by the BIA to seek to withdraw from that arrangement within the voluntary departure period”). A more expeditious solution to the untenable conflict between the voluntary departure scheme and the motion to reopen might be to permit an alien who has departed the United States to pursue a motion to reopen postdeparture, much as Congress has permitted with respect to judicial review of a removal order. See IIRIRA §306(b), 110 Stat. 3009–612 (repealing 8 U. S. C. §1105a(c) (1994 ed.), which prohibited an alien who “departed from the United States after the issuance of the order” to seek judicial review). As noted previously, 8 CFR §1003.2(d) provides that the alien’s departure constitutes withdrawal of the motion to reopen. This regulation, however, has not been challenged in these proceedings, and we do not consider it here. * * * Petitioner requested withdrawal of his motion for voluntary departure prior to expiration of his 30-day departure period. The BIA should have granted this request, without regard to the merits of petitioner’s I–130 petition, and permitted petitioner to pursue his motion to reopen. We find this same mistake implicit in the Court of Appeals’ decision. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.
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552.US.264
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After this Court announced a “new rule” for evaluating the reliability of testimonial statements in criminal cases, see Crawford v. Washington, 541 U. S. 36, 68–69, petitioner sought state postconviction relief, arguing that he was entitled to a new trial because admitting the victim’s taped interview at his trial violated Crawford’s rule. The Minnesota trial and appeals courts concluded that Crawford did not apply retroactively under Teague v. Lane, 489 U. S. 288. The State Supreme Court agreed, and also concluded that state courts are not free to give a decision of this Court announcing a new constitutional rule of criminal procedure broader retroactive application than that given by this Court. Held: Teague does not constrain the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. Pp. 4–27. (a) Crawford announced a “new rule”—as defined by Teague—because its result “was not dictated by precedent existing at the time the defendant’s conviction became final,” Teague, 489 U. S., at 301 (plurality opinion). It was not, however, a rule “of [this Court’s] own devising” or the product of its own views about sound policy, Crawford, 541 U. S., at 67. Pp. 4–6. (b) The Court first adopted a “retroactivity” standard in Linkletter v. Walker, 381 U. S. 618, 629, but later rejected that standard for cases pending on direct review, Griffith v. Kentucky, 479 U. S. 314, and on federal habeas review, Teague v. Lane, 489 U. S. 288. Under Teague, new constitutional rules of criminal procedure may not be applied retroactively to cases on federal habeas review unless they place certain primary individual conduct beyond the States’ power to proscribe or are “watershed” rules of criminal procedure. Id., at 310 (plurality opinion). Pp. 6–11. (c) Neither Linkletter nor Teague explicitly or implicitly constrained the States’ authority to provide remedies for a broader range of constitutional violations than are redressable on federal habeas. And Teague makes clear that its rule was tailored to the federal habeas context and thus had no bearing on whether States could provide broader relief in their own postconviction proceedings. Nothing in Justice O’Connor’s general nonretroactivity rule discussion in Teague asserts or even intimates that her definition of the class eligible for relief under a new rule should inhibit the authority of a state agency or state court to extend a new rule’s benefit to a broader class than she defined. Her opinion also clearly indicates that Teague’s general nonretroactivity rule was an exercise of this Court’s power to interpret the federal habeas statute. Since Teague is based on statutory authority that extends only to federal courts applying a federal statute, it cannot be read as imposing a binding obligation on state courts. The opinion’s text and reasoning also illustrate that the rule was meant to apply only to federal courts considering habeas petitions challenging state-court criminal convictions. The federal interest in uniformity in the application of federal law does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees. The Teague rule was intended to limit federal courts’ authority to overturn state convictions not to limit a state court’s authority to grant relief for violations of new constitutional law rules when reviewing its own State’s convictions. Subsequent cases confirm this view. See, e.g., Beard v. Banks, 542 U. S. 406, 412. Pp. 11–18. (d) Neither Michigan v. Payne, 412 U. S. 47, nor American Trucking Assns., Inc. v. Smith, 496 U. S. 167, cast doubt on the state courts’ authority to provide broader remedies for federal constitutional violations than mandated by Teague. Pp. 18–24. (e) No federal rule, either implicitly announced in Teague, or in some other source of federal law, prohibits States from giving broader retroactive effect to new rules of criminal procedure. Pp. 24–26. 718 N. W. 2d 451, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Roberts, C. J., filed a dissenting opinion in which Kennedy, J., joined.
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New constitutional rules announced by this Court that place certain kinds of primary individual conduct beyond the power of the States to proscribe, as well as “watershed” rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and in cases pending on direct review, but may not provide the basis for a federal collateral attack on a state-court conviction. This is the substance of the “Teague rule” described by Justice O’Connor in her plurality opinion in Teague v. Lane, 489 U. S. 288 (1989).[Footnote 1] The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not. I In 1996 a Minnesota jury found petitioner Stephen Danforth guilty of first-degree criminal sexual conduct with a minor. See Minn. Stat. §609.342, subd. 1(a) (1994). The 6-year-old victim did not testify at trial, but the jury saw and heard a videotaped interview of the child. On appeal from his conviction, Danforth argued that the tape’s admission violated the Sixth Amendment’s guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Applying the rule of admissibility set forth in Ohio v. Roberts, 448 U. S. 56 (1980), the Minnesota Court of Appeals concluded that the tape “was sufficiently reliable to be admitted into evidence,” and affirmed the conviction. State v. Danforth, 573 N. W. 2d 369, 375 (1997). The conviction became final in 1998 when the Minnesota Supreme Court denied review and petitioner’s time for filing a writ of certiorari elapsed. See Caspari v. Bohlen, 510 U. S. 383, 390 (1994). After petitioner’s conviction had become final, we announced a “new rule” for evaluating the reliability of testimonial statements in criminal cases. In Crawford v. Washington, 541 U. S. 36, 68–69 (2004), we held that where testimonial statements are at issue, “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Shortly thereafter, petitioner filed a state postconviction petition, in which he argued that he was entitled to a new trial because the admission of the taped interview violated the rule announced in Crawford. Applying the standards set forth in Teague, the Minnesota trial court and the Minnesota Court of Appeals concluded that Crawford did not apply to petitioner’s case. The State Supreme Court granted review to consider two arguments: (1) that the lower courts erred in holding that Crawford did not apply retroactively under Teague; and (2) that the state court was “free to apply a broader retroactivity standard than that of Teague,” and should apply the Crawford rule to petitioner’s case even if federal law did not require it to do so. 718 N. W. 2d 451, 455 (2006). The court rejected both arguments. Ibid. With respect to the second, the Minnesota court held that our decisions in Michigan v. Payne, 412 U. S. 47 (1973), American Trucking Assns., Inc. v. Smith, 496 U. S. 167 (1990), and Teague itself establish that state courts are not free to give a Supreme Court decision announcing a new constitutional rule of criminal procedure broader retroactive application than that given by this Court.[Footnote 2] The Minnesota Court acknowledged that other state courts had held that Teague does not apply to state postconviction proceedings,[Footnote 3] but concluded that “we are not free to fashion our own standard of retroactivity for Crawford.” 718 N. W. 2d, at 455–457. Our recent decision in Whorton v. Bockting, 549 U. S. ___ (2007), makes clear that the Minnesota court correctly concluded that federal law does not require state courts to apply the holding in Crawford to cases that were final when that case was decided. Nevertheless, we granted certiorari, 550 U. S. ___ (2007), to consider whether Teague or any other federal rule of law prohibits them from doing so.[Footnote 4] II We begin with a comment on the source of the “new rule” announced in Crawford. For much of our Nation’s history, federal constitutional rights—such as the Sixth Amendment confrontation right at issue in Crawford—were not binding on the States. Federal law, in fact, imposed no constraints on the procedures that state courts could or should follow in imposing criminal sanctions on their citizens. Neither the Federal Constitution as originally ratified nor any of the Amendments added by the Bill of Rights in 1791 gave this Court or any other federal-court power to review the fairness of state criminal procedures. Moreover, before 1867 the statutory authority of federal district courts to issue writs of habeas corpus did not extend to convicted criminals in state custody. See Act of Feb. 5, 1867, ch. 28, §1, 14 Stat. 385. The ratification of the Fourteenth Amendment radically changed the federal courts’ relationship with state courts. That Amendment, one of the post-Civil War Reconstruction Amendments ratified in 1868, is the source of this Court’s power to decide whether a defendant in a state proceeding received a fair trial—i.e., whether his deprivation of liberty was “without due process of law.” U. S. Const., Amdt. 14, §1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law”). In construing that Amendment, we have held that it imposes minimum standards of fairness on the States, and requires state criminal trials to provide defendants with protections “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325 (1937). Slowly at first, and then at an accelerating pace in the 1950’s and 1960’s, the Court held that safeguards afforded by the Bill of Rights—including a defendant’s Sixth Amendment right “to be confronted with the witnesses against him”—are incorporated in the Due Process Clause of the Fourteenth Amendment and are therefore binding upon the States. See Gideon v. Wainwright, 372 U. S. 335 (1963) (applying the Sixth Amendment right to counsel to the States); Pointer v. Texas, 380 U. S. 400, 403 (1965) (holding that “the Sixth Amendment’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment”). Our interpretation of that basic Sixth Amendment right of confrontation has evolved over the years. In Crawford we accepted the petitioner’s argument that the interpretation of the Sixth Amendment right to confrontation that we had previously endorsed in Roberts, 448 U. S. 56, needed reconsideration because it “stray[ed] from the original meaning of the Confrontation Clause.” 541 U. S., at 42. We “turn[ed] to the historical background of the Clause to understand its meaning,” id., at 43, and relied primarily on legal developments that had occurred prior to the adoption of the Sixth Amendment to derive the correct interpretation. Id., at 43–50. We held that the “Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.” Id., at 67. Thus, our opinion in Crawford announced a “new rule”—as that term is defined in Teague—because the result in that case “was not dictated by precedent existing at the time the defendant’s conviction became final,” Teague, 489 U. S., at 301 (plurality opinion). It was not, however, a rule “of our own devising” or the product of our own views about sound policy. III Our decision today must also be understood against the backdrop of our somewhat confused and confusing “retroactivity” cases decided in the years between 1965 and 1987. Indeed, we note at the outset that the very word “retroactivity” is misleading because it speaks in temporal terms. “Retroactivity” suggests that when we declare that a new constitutional rule of criminal procedure is “nonretroactive,” we are implying that the right at issue was not in existence prior to the date the “new rule” was announced. But this is incorrect. As we have already explained, the source of a “new rule” is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the “retroactivity” of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.[Footnote 5] Originally, criminal defendants whose convictions were final were entitled to federal habeas relief only if the court that rendered the judgment under which they were in custody lacked jurisdiction to do so. Ex parte Watkins, 3 Pet. 193 (1830); Ex parte Lange, 18 Wall. 163, 176 (1874); Ex parte Siebold, 100 U. S. 371, 376–377 (1880).[Footnote 6] In 1915, the realm of violations for which federal habeas relief would be available to state prisoners was expanded to include state proceedings that “deprive[d] the accused of his life or liberty without due process of law.” Frank v. Mangum, 237 U. S. 309, 335 (1915). In the early 1900’s, however, such relief was only granted when the constitutional violation was so serious that it effectively rendered the conviction void for lack of jurisdiction. See, e.g., Moore v. Dempsey, 261 U. S. 86 (1923) (mob domination of a trial); Mooney v. Holohan, 294 U. S. 103 (1935) (per curiam) (knowing use of perjured testimony by the prosecution); Waley v. Johnston, 316 U. S. 101 (1942) (per curiam) (coerced guilty plea).[Footnote 7] The serial incorporation of the Amendments in the Bill of Rights during the 1950’s and 1960’s imposed more constitutional obligations on the States and created more opportunity for claims that individuals were being convicted without due process and held in violation of the Constitution. Nevertheless, until 1965 the Court continued to construe every constitutional error, including newly announced ones, as entitling state prisoners to relief on federal habeas. “New” constitutional rules of criminal procedure were, without discussion or analysis, routinely applied to cases on habeas review. See, e.g., Jackson v. Denno, 378 U. S. 368 (1964); Gideon, 372 U. S. 335; Eskridge v. Washington Bd. of Prison Terms and Paroles, 357 U. S. 214 (1958) (per curiam). In Linkletter v. Walker, 381 U. S. 618 (1965), the Court expressly considered the issue of “retroactivity” for the first time. Adopting a practical approach, we held that the retroactive effect of each new rule should be determined on a case-by-case basis by examining the purpose of the rule, the reliance of the States on the prior law, and the effect on the administration of justice of retroactive application of the rule. Id., at 629. Applying those considerations to the exclusionary rule announced in Mapp v. Ohio, 367 U. S. 643 (1961), we held that the Mapp rule would not be given retroactive effect; it would not, in other words, be applied to convictions that were final before the date of the Mapp decision.[Footnote 8] Linkletter, 381 U. S., at 636–640. During the next four years, application of the Linkletter standard produced strikingly divergent results. As Justice Harlan pointed out in his classic dissent in Desist v. United States, 394 U. S. 244, 257 (1969), one new rule was applied to all cases subject to direct review, Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966); another to all cases in which trials had not yet commenced, Johnson v. New Jersey, 384 U. S. 719 (1966); another to all cases in which tainted evidence had not yet been introduced at trial, Fuller v. Alaska, 393 U. S. 80 (1968) (per curiam); and still others only to the party involved in the case in which the new rule was announced and to all future cases in which the proscribed official conduct had not yet occurred, Stovall v. Denno, 388 U. S. 293 (1967); DeStefano v. Woods, 392 U. S. 631 (1968) (per curiam). He reasonably questioned whether such decisions “may properly be considered the legitimate products of a court of law, rather than the commands of a super-legislature.” 394 U. S., at 259. Justice Harlan’s dissent in Desist, buttressed by his even more searching separate opinion in Mackey v. United States, 401 U. S. 667, 675 (1971) (opinion concurring in judgments in part and dissenting in part), and scholarly criticism,[Footnote 9] laid the groundwork for the eventual demise of the Linkletter standard. In Griffith v. Kentucky, 479 U. S. 314 (1987), the Court rejected as “unprincipled and inequitable,” the application of the Linkletter standard to cases pending on direct review. In Teague, Justice O’Connor reaffirmed Griffith’s rejection of the Linkletter standard for determining the “retroactive” applicability of new rules to state convictions that were not yet final and rejected the Linkletter standard for cases pending on federal habeas review. She adopted (with a significant modification) the approach advocated by Justice Harlan for federal collateral review of final state judgments. Justice O’Connor endorsed a general rule of nonretroactivity for cases on collateral review, stating that “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U. S., at 310 (plurality opinion). The opinion defined two exceptions: rules that render types of primary conduct “ ‘beyond the power of the criminal law-making authority to proscribe,’ ” id., at 311, and “watershed” rules that “implicate the fundamental fairness of the trial,” id., at 311, 312, 313.[Footnote 10] It is clear that Linkletter and then Teague considered what constitutional violations may be remedied on federal habeas.[Footnote 11] They did not define the scope of the “new” constitutional rights themselves. Nor, as we shall explain, did Linkletter or Teague (or any of the other cases relied upon by respondent and the Minnesota Supreme Court) speak to the entirely separate question whether States can provide remedies for violations of these rights in their own postconviction proceedings. IV Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas. Linkletter spoke in broad terms about the retroactive applicability of new rules to state convictions that had become final prior to our announcement of the rules. Although Linkletter arose on federal habeas, the opinion did not rely on that procedural posture as a factor in its holding or analysis. Arguably, therefore, the approach it established might have been applied with equal force to both federal and state courts reviewing final state convictions. But we did not state—and the state courts did not conclude—that Linkletter imposed such a limitation on the States.[Footnote 12] A year after deciding Linkletter, we granted certiorari in Johnson to address the retroactivity of the rules announced in Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, 384 U. S. 436 (1966). Applying the standard announced in Linkletter, we held that those rules should be applied only to trials that began after the respective dates of those decisions; they were given no retroactive effect beyond the parties in Miranda and Escobedo themselves.[Footnote 13] Notably, the Oregon Supreme Court decided to give retroactive effect to Escobedo despite our holding in Johnson. In State v. Fair, 263 Ore. 383, 502 P. 2d 1150 (1972), the Oregon court noted that it was continuing to apply Escobedo retroactively and correctly stated that “we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires.” 263 Ore., at 387–388, 502 P. 2d, at 1152. In so holding, the Oregon court cited our language in Johnson that “ ‘States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.’ ” 263 Ore., at 386, 502 P. 2d, at 1151 (quoting Johnson, 384 U. S., at 733).[Footnote 14] Like Linkletter, Teague arose on federal habeas. Unlike in Linkletter, however, this procedural posture was not merely a background fact in Teague. A close reading of the Teague opinion makes clear that the rule it established was tailored to the unique context of federal habeas and therefore had no bearing on whether States could provide broader relief in their own postconviction proceedings than required by that opinion. Because the case before us now does not involve either of the “Teague exceptions,” it is Justice O’Connor’s discussion of the general rule of nonretroactivity that merits the following three comments. First, not a word in Justice O’Connor’s discussion—or in either of the opinions of Justice Harlan that provided the blueprint for her entire analysis—asserts or even intimates that her definition of the class eligible for relief under a new rule should inhibit the authority of any state agency or state court to extend the benefit of a new rule to a broader class than she defined. Second, Justice O’Connor’s opinion clearly indicates that Teague’s general rule of nonretroactivity was an exercise of this Court’s power to interpret the federal habeas statute. Chapter 153 of Title 28 of the U. S. Code gives federal courts the authority to grant “writs of habeas corpus,” but leaves unresolved many important questions about the scope of available relief. This Court has interpreted that congressional silence—along with the statute’s command to dispose of habeas petitions “as law and justice require,” 28 U. S. C. §2243—as an authorization to adjust the scope of the writ in accordance with equitable and prudential considerations. See, e.g., Brecht v. Abrahamson, 507 U. S. 619 (1993) (harmless-error standard); McCleskey v. Zant, 499 U. S. 467 (1991) (abuse-of-the-writ bar to relief); Wainwright v. Sykes, 433 U. S. 72 (1977) (procedural default); Stone v. Powell, 428 U. S. 465 (1976) (cognizability of Fourth Amendment claims). Teague is plainly grounded in this authority, as the opinion expressly situated the rule it announced in this line of cases adjusting the scope of federal habeas relief in accordance with equitable and prudential considerations. 489 U. S., at 308 (plurality opinion) (citing, inter alia, Wainwright and Stone).[Footnote 15] Since Teague is based on statutory authority that extends only to federal courts applying a federal statute, it cannot be read as imposing a binding obligation on state courts. Third, the text and reasoning of Justice O’Connor’s opinion also illustrate that the rule was meant to apply only to federal courts considering habeas corpus petitions challenging state-court criminal convictions. Justice O’Connor made numerous references to the “Great writ” and the “writ,” and expressly stated that “[t]he relevant frame of reference” for determining the appropriate retroactivity rule is defined by “the purposes for which the writ of habeas corpus is made available.” 489 U. S., at 306 (plurality opinion). Moreover, she justified the general rule of nonretroactivity in part by reference to comity and respect for the finality of state convictions. Federalism and comity considerations are unique to federal habeas review of state convictions. See, e.g., State v. Preciose, 129 N. J. 451, 475, 609 A. 2d 1280, 1292 (1992) (explaining that comity and federalism concerns “simply do not apply when this Court reviews procedural rulings by our lower courts”). If anything, considerations of comity militate in favor of allowing state courts to grant habeas relief to a broader class of individuals than is required by Teague. And while finality is, of course, implicated in the context of state as well as federal habeas, finality of state convictions is a state interest, not a federal one. It is a matter that States should be free to evaluate, and weigh the importance of, when prisoners held in state custody are seeking a remedy for a violation of federal rights by their lower courts. The dissent correctly points out that Teague was also grounded in concerns over uniformity and the inequity inherent in the Linkletter approach. There is, of course, a federal interest in “reducing the inequity of haphazard retroactivity standards and disuniformity in the application of federal law.” Post, at 12. This interest in uniformity, however, does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees. The fundamental interest in federalism that allows individual States to define crimes, punishments, rules of evidence, and rules of criminal and civil procedure in a variety of different ways—so long as they do not violate the Federal Constitution—is not otherwise limited by any general, undefined federal interest in uniformity. Nonuniformity is, in fact, an unavoidable reality in a federalist system of government. Any State could surely have adopted the rule of evidence defined in Crawford under state law even if that case had never been decided. It should be equally free to give its citizens the benefit of our rule in any fashion that does not offend federal law. It is thus abundantly clear that the Teague rule of nonretroactivity was fashioned to achieve the goals of federal habeas while minimizing federal intrusion into state criminal proceedings. It was intended to limit the authority of federal courts to overturn state convictions—not to limit a state court’s authority to grant relief for violations of new rules of constitutional law when reviewing its own State’s convictions.[Footnote 16] Our subsequent cases, which characterize the Teague rule as a standard limiting only the scope of federal habeas relief, confirm that Teague speaks only to the context of federal habeas. See, e.g., Beard v. Banks, 542 U. S. 406, 412 (2004) (“Teague’s nonretroactivity principle acts as a limitation on the power of federal courts to grant habeas corpus relief to state prisoners” (internal quotation marks, ellipsis, and brackets omitted)); Caspari, 510 U. S., at 389 (“The [Teague] nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final”). It is also noteworthy that for many years following Teague, state courts almost universally understood the Teague rule as binding only federal habeas courts, not state courts. See, e.g., Cowell v. Leapley, 458 N. W. 2d 514 (S. D. 1990); Preciose, 129 N. J. 451, 609 A. 2d 1280; State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 256–257, 548 N. W. 2d 45, 49 (1996) (choosing of its own volition to adopt the Teague rule); but see State v. Egelhoff, 272 Mont. 114, 900 P. 2d 260 (1995).[Footnote 17] Commentators were similarly confident that Teague’s “restrictions appl[ied] only to federal habeas cases,” leaving States free to “determine whether to follow the federal courts’ rulings on retroactivity or to fashion rules which respond to the unique concerns of that state.” Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies, 44 Ala. L. Rev. 421, 423–424, 422–423 (1993). In sum, the Teague decision limits the kinds of constitutional violations that will entitle an individual to relief on federal habeas, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed “nonretroactive” under Teague. V The State contends that two of our prior decisions—Michigan v. Payne and American Trucking Assns., Inc. v. Smith—cast doubt on state courts’ authority to provide broader remedies for federal constitutional violations than mandated by Teague. We disagree. A In Michigan v. Payne, 412 U. S. 47, we considered the retroactivity of the rule prohibiting “vindictive” resentencing that had been announced in our opinion in North Carolina v. Pearce, 395 U. S. 711, 723–726 (1969).[Footnote 18] Relying on the approach set forth in Linkletter and Stovall, we held that the Pearce rule did not apply because Payne’s resentencing had occurred prior to Pearce’s date of decision.[Footnote 19] We therefore reversed the judgment of the Michigan Supreme Court, which had applied Pearce retroactively, and remanded for further proceedings. At first blush the fact that we reversed the judgment of the Michigan court appears to lend support to the view that state courts may not give greater retroactive effect to new rules announced by this Court than we expressly authorize. But, as our opinion in Payne noted, the Michigan Supreme Court had applied the Pearce rule retroactively “ ‘pending clarification’ ” by this Court. 412 U. S., at 49. As the Michigan Court explained, it had applied the new rule in the case before it in order to give guidance to Michigan trial courts concerning what it regarded as an ambiguity in Pearce’s new rule.[Footnote 20] The Michigan Court did not purport to make a definitive ruling on the retroactivity of Pearce; nor did it purport to apply a broader state rule of retroactivity than required by federal law. Our opinion in Payne did not require the Michigan Supreme Court to modify its disposition of the case; it simply remanded for further proceedings after providing the clarification that the Michigan Court sought. Most significantly, other than the fact that the case was remanded for further proceedings, not a word in our Payne opinion suggests that the Court intended to prohibit state courts from applying new constitutional standards in a broader range of cases than we require.[Footnote 21] Notably, at least some state courts continued, after Payne, to adopt and apply broader standards of retroactivity than required by our decisions. In Pennsylvania v. McCormick, 359 Pa. Super. 461, 470, 519 A. 2d 442, 447 (1986), for example, the Superior Court of Pennsylvania chose not to follow this Court’s nonretroactivity holding in Allen v. Hardy, 478 U. S. 255 (1986) (per curiam). The Pennsylvania court correctly explained that our decision was “not binding authority [in part] because neither the federal nor the state constitution dictate which decisions must be given retroactive effect.” 359 Pa. Super., at 470, 519 A. 2d, at 447. B In American Trucking Assns., Inc. v. Smith, 496 U. S. 167, petitioners challenged the constitutionality of an Arkansas statute enacted in 1983 that imposed a discriminatory burden on interstate truckers. While their suit was pending, this Court declared a virtually identical Pennsylvania tax unconstitutional. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987). Shortly thereafter, the Arkansas Supreme Court struck down the Arkansas tax at issue. The primary issue in Smith was whether petitioners were entitled to a refund of taxes that were assessed before the date of our decision in Scheiner. The Arkansas Court held that petitioners were not entitled to a refund because our decision in Scheiner did not apply retroactively. Four Members of this Court agreed. The plurality opinion concluded that federal law did not provide petitioners with a right to a refund of pre-Scheiner tax payments because Scheiner did not apply retroactively to invalidate the Arkansas tax prior to its date of decision. Four Members of this Court dissented. The dissenting opinion argued that the case actually raised both the substantive question whether the tax violated the Commerce Clause of the Federal Constitution and the remedial question whether, if so, the petitioners were entitled to a refund. The dissent concluded as a matter of federal law that the tax was invalid during the years before Scheiner, and that petitioners were entitled to a decision to that effect. Whether petitioners should get a refund, however, the dissent deemed a mixed question of state and federal law that should be decided by the state court in the first instance. Justice Scalia concurred with the plurality’s judgment because he disagreed with the substantive rule announced in Scheiner, but he did not agree with the plurality’s reasoning. After stating that his views on retroactivity diverged from the plurality’s “in a fundamental way,” Justice Scalia explained: “I share [the dissent’s] perception that prospective decisionmaking is incompatible with the judicial role, which is to say what the law is, not to prescribe what [the law] shall be. The very framing of the issue that we purport to decide today—whether our decision in Scheiner shall ‘apply’ retroactively—presupposes a view of our decisions as creating the law, as opposed to declaring what the law already is. Such a view is contrary to that understanding of ‘the judicial Power,’ U. S. Const., Art. III, § 1, which is not only the common and traditional one, but which is the only one that can justify courts in denying force and effect to the unconstitutional enactments of duly elected legislatures, see Marbury v. Madison, 1 Cranch 137 (1803)—the very exercise of judicial power asserted in Scheiner. To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours ‘applies’ in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense. Either enforcement of the statute at issue in Scheiner (which occurred before our decision there) was unconstitutional, or it was not; if it was, then so is enforcement of all identical statutes in other States, whether occurring before or after our decision; and if it was not, then Scheiner was wrong, and the issue of whether to ‘apply’ that decision needs no further attention.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 201. Because Justice Scalia’s vote rested on his disagreement with the substantive rule announced in Scheiner—rather than with the retroactivity analysis in the dissenting opinion—there were actually five votes supporting the dissent’s views on the retroactivity issue. Accordingly, it is the dissent rather than the plurality that should inform our analysis of the issue before us today.[Footnote 22] Moreover, several years later, a majority of this Court explicitly adopted the Smith dissent’s reasoning in Harper v. Virginia Dept. of Taxation, 509 U. S. 86 (1993). Harper, like Smith, involved a request for a refund of taxes paid before we declared a similar Michigan tax unconstitutional. We held that the Virginia tax at issue in Harper was in fact invalid—even before we declared the similar tax unconstitutional—but that this did not necessarily entitle the petitioners to a full refund. We explained that the Constitution required Virginia to “ ‘provide relief consistent with federal due process principles,’ ” 509 U. S., at 100 (citing American Trucking Assns., Inc. v. Smith, 496 U. S., at 181), but that “ ‘a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination’ ” under the due process clause, 509 U. S., at 100 (citing McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 39–40 (1990)). We left to the “Virginia courts this question of state law and the performance of other tasks pertaining to the crafting of any appropriate remedy.” 509 U. S., at 102. And we specifically noted that Virginia “ ‘is free to choose which form of relief it will provide, so long as that relief satisfies the minimum federal requirements we have outlined.’ ” Ibid. (citing McKesson, 496 U. S., at 51–52); see also 509 U. S., at 102 (“State law may provide relief beyond the demands of federal due process, but under no circumstances may it confine petitioners to a lesser remedy” citations omitted)). Thus, to the extent that these civil retroactivity decisions are relevant to the issue before us today,[Footnote 23] they support our conclusion that the remedy a state court chooses to provide its citizens for violations of the Federal Constitution is primarily a question of state law. Federal law simply “sets certain minimum requirements that States must meet but may exceed in providing appropriate relief.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 178–179 (plurality opinion). They provide no support for the proposition that federal law places a limit on state authority to provide remedies for federal constitutional violations. VI Finally, while the State acknowledges that it may grant its citizens broader protection than the Federal Constitution requires by enacting appropriate legislation or by judicial interpretation of its own Constitution, it argues that it may not do so by judicial misconstruction of federal law. Oregon v. Hass, 420 U. S. 714 (1975)—like our early decisions in Ableman v. Booth, 21 How. 506 (1859), and Tarble’s Case, 13 Wall. 397 (1872)—provides solid support for that proposition. But the States that give broader retroactive effect to this Court’s new rules of criminal procedure do not do so by misconstruing the federal Teague standard. Rather, they have developed state law to govern retroactivity in state postconviction proceedings. See, e.g., State v. Whitfield, 107 S. W. 3d 253, 268 (Mo. 2003) (“[A]s a matter of state law, this Court chooses not to adopt the Teague analysis . . .”). The issue in this case is whether there is a federal rule, either implicitly announced in Teague, or in some other source of federal law, that prohibits them from doing so. The absence of any precedent for the claim that Teague limits state collateral review courts’ authority to provide remedies for federal constitutional violations is a sufficient reason for concluding that there is no such rule of federal law. That conclusion is confirmed by several additional considerations. First, if there is such a federal rule of law, presumably the Supremacy Clause in Article V of the Federal Constitution would require all state entities—not just state judges—to comply with it. We have held that States can waive a Teague defense, during the course of litigation, by expressly choosing not to rely on it, see Collins v. Youngblood, 497 U. S. 37, 41 (1990), or by failing to raise it in a timely manner, see Schiro v. Farley, 510 U. S. 222, 228–229 (1994). It would indeed be anomalous to hold that state legislatures and executives are not bound by Teague, but that state courts are. Second, the State has not identified, and we cannot discern, the source of our authority to promulgate such a novel rule of federal law. While we have ample authority to control the administration of justice in the federal courts—particularly in their enforcement of federal legislation—we have no comparable supervisory authority over the work of state judges. Johnson v. Fankell, 520 U. S. 911 (1997). And while there are federal interests that occasionally justify this Court’s development of common-law rules of federal law,[Footnote 24] our normal role is to interpret law created by others and “not to prescribe what it shall be.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 201 (Scalia, J., concurring in judgment). Just as constitutional doubt may tip the scales in favor of one construction of a statute rather than another, so does uncertainty about the source of authority to impose a federal limit on the power of state judges to remedy wrongful state convictions outweigh any possible policy arguments favoring the rule that respondent espouses. Finally, the dissent contends that the “end result [of this opinion] is startling” because “two criminal defendants, each of whom committed the same crime, at the same time, whose convictions became final on the same day, and each of whom raised an identical claim at the same time under the Federal Constitution” could obtain different results. Post, at 1. This assertion ignores the fact that the two hypothetical criminal defendants did not actually commit the “same crime.” They violated different state laws, were tried in and by different state sovereigns, and may—for many reasons—be subject to different penalties. As previously noted, such nonuniformity is a necessary consequence of a federalist system of government. VII It is important to keep in mind that our jurisprudence concerning the “retroactivity” of “new rules” of constitutional law is primarily concerned, not with the question whether a constitutional violation occurred, but with the availability or nonavailability of remedies. The former is a “pure question of federal law, our resolution of which should be applied uniformly throughout the Nation, while the latter is a mixed question of state and federal law.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 205 (Stevens, J., dissenting). A decision by this Court that a new rule does not apply retroactively under Teague does not imply that there was no right and thus no violation of that right at the time of trial—only that no remedy will be provided in federal habeas courts. It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process. Accordingly, the judgment of the Supreme Court of Minnesota is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. As was true in Michigan v. Payne, the Minnesota Court is free to reinstate its judgment disposing of the petition for state postconviction relief. It is so ordered. Footnote 1 Although Teague was a plurality opinion that drew support from only four Members of the Court, the Teague rule was affirmed and applied by a majority of the Court shortly thereafter. See Penry v. Lynaugh, 492 U. S. 302, 313 (1989) (“Because Penry is before us on collateral review, we must determine, as a threshold matter, whether granting him the relief he seeks would create a new rule. Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions” (citation and internal quotation marks omitted)). Footnote 2 The relevant passage in the Minnesota Supreme Court opinion states: “Danforth argues that Teague dictates the limits of retroactive application of new rules only in federal habeas corpus proceedings and does not limit the retroactive application of new rules in state postconviction proceedings. Danforth is incorrect when he asserts that state courts are free to give a Supreme Court decision of federal constitutional criminal procedure broader retroactive application than that given by the Supreme Court. … In light of Payne and American Trucking Associations, we cannot apply state retroactivity principles when determining the retroactivity of a new rule of federal constitutional criminal procedure if the Supreme Court has already provided relevant federal principles.” 718 N. W. 2d 451, 456 (2006). Footnote 3 See, e.g., Daniels v. State, 561 N. E. 2d 487, 489 (Ind. 1990); State ex rel. Taylor v. Whitley, 606 So. 2d 1292, 1296–1297 (La. 1992); State v. Whitfield, 107 S. W. 3d 253, 266–268 (Mo. 2003); Colwell v. State, 118 Nev. 807, 816–819, 59 P. 3d 463, 470–471 (2002) (per curiam); Cowell v. Leapley, 458 N. W. 2d 514, 517–518 (S. D. 1990). Footnote 4 We note at the outset that this case does not present the questions whether States are required to apply “watershed” rules in state post-conviction proceedings, whether the Teague rule applies to cases brought under 28 U. S. C. §2255 (2000 ed., Supp. V), or whether Congress can alter the rules of retroactivity by statute. Accordingly, we express no opinion on these issues. Footnote 5 It may, therefore, make more sense to speak in terms of the “redressability” of violations of new rules, rather than the “retroactivity” of such rules. Cf. American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 201 (1990) (Scalia, J., concurring in judgment) (“The very framing of the issue that we purport to decide today—whether our decision in [American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987),] shall ‘apply’ retroactively—presupposes [an incorrect] view of our decisions as creating the law, as opposed to declaring what the law already is”). Unfortunately, it would likely create, rather than alleviate, confusion to change our terminology at this point. Accordingly, we will continue to utilize the existing vocabulary, despite its shortcomings. Footnote 6 Although our post-1867 cases reflected a “softening” of the concept of jurisdiction to embrace claims that the statute under which the petitioner had been convicted was unconstitutional or that the detention was based on an illegally imposed sentence, the Court adhered to the basic rule that habeas was unavailable to review claims of constitutional error that did not go to the trial court’s jurisdiction. See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 471, 483–484 (1963); Hart, The Supreme Court 1958 Term, Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84, 103–104 (1959). Footnote 7 “[I]n Waley v. Johnston, 316 U. S. 101 (1942), the Court openly discarded the concept of jurisdiction—by then more [of] a fiction than anything else—as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of disregard of the constitutional rights of the accused . . . .” Wainwright v. Sykes, 433 U. S. 72, 79 (1977) (internal quotation marks omitted). Footnote 8 Linkletter arose in the context of a denial of federal habeas relief, so its holding was “necessarily limited to convictions which had become final by the time Mapp … [was] rendered.” Johnson v. New Jersey, 384 U. S. 719, 732 (1966). We noted in Linkletter that Mapp was being applied to cases that were still pending on direct review at the time it was decided, so the issue before us was expressly limited to “whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before rendition of our opinion.” 381 U. S., at 622 (footnote omitted). Shortly thereafter, however, we held that the three-pronged Linkletter analysis should be applied both to convictions that were final before rendition of our opinions and to cases that were still pending on direct review. See Johnson, 384 U. S., at 732; Stovall v. Denno, 388 U. S. 293 (1967). Footnote 9 See, e.g., Haddad, “Retroactivity Should be Rethought”: A Call for the End of the Linkletter Doctrine, 60 J. Crim. L., C. & P. S. 417 (1969). Footnote 10 Rules of the former type “are more accurately characterized as substantive rules not subject to [Teague’s] bar.” Schriro v. Summerlin, 542 U. S. 348, 352, n. 4 (2004). Footnote 11 Similarly, Johnson, and Griffith v. Kentucky, 479 U. S. 314 (1987), defined the scope of constitutional violations that would be remedied on direct appeal. Footnote 12 The dissent is correct that at least one “thoughtful legal scholar” believed that Linkletter did preclude States from applying new constitutional rules more broadly than our cases required. Post, at 4 (citing Mishkin, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 91, n. 132 (1965)). Notably, this comment was made in the context of an attack on Linkletter’s prospective approach as inconsistent with the idea that judges are “bound by a body of fixed, overriding law.” Mishkin, 79 Harv. L. Rev., at 62. Moreover, the footnote cited by the dissent concludes with a statement that “the reservation to the states of the power to apply [new rules] to all convictions, … is … the preferable pattern.” Id., at 91, n. 132. In all events, even if Linkletter and its progeny rested on the assumption that “new rules” of constitutional law did not exist until announced by this Court, that view of the law was rejected when we endorsed Justice Harlan’s analysis of retroactivity. Footnote 13 That same year, we similarly denied retroactive effect to the rule announced in Griffin v. California, 380 U. S. 609 (1965), prohibiting prosecutorial comment on the defendant’s failure to testify. See Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966). Shortly thereafter, in a case involving a Griffin error, we held for the first time that there are some constitutional errors that do not require the automatic reversal of a conviction. Chapman v. California, 386 U. S. 18, 22 (1967). Both Shott and Chapman protected the State of California from a potentially massive exodus of state prisoners because their prosecutors and judges had routinely commented on a defendant’s failure to testify. Footnote 14 Although the plain meaning of this language in Johnson is that a state creating its own substantive standards can be as generous with their retroactive effect as it wishes, courts and commentators both before and after Teague v. Lane, 489 U. S. 288 (1989), cited this language in support of the proposition that state courts “may apply new constitutional standards ‘in a broader range of cases than is required’ by th[is] Court’s decision not to apply the standards retroactively.” Colwell v. State, 118 Nev. 807, 818, 59 P. 3d 463, 470–471 (2002) (per curiam); see also Stith, A Contrast of State and Federal Court Authority to Grant Habeas Relief, 38 Val. U. L. Rev. 421, 443 (2004). Thirty years after deciding State v. Fair, the Oregon Supreme Court “disavowed” this analysis based on our decisions in Oregon v. Hass, 420 U. S. 714 (1975), and American Trucking Assns., Inc. v. Smith, 496 U. S. 167. Page v. Palmateer, 336 Ore. 379, 84 P. 3d 133 (2004). As we explain infra, at 19, 20, its reliance on those cases was misplaced, and its decision to change course was therefore misguided. Footnote 15 Subsequent decisions have characterized Teague in a similar fashion. See, e.g., Brecht, 507 U. S., at 633, 634 (stating that “in defining the scope of the writ, we look first to the considerations underlying our habeas jurisprudence,” and identifying Teague as an example). And individual Justices have been even more explicit. See Day v. McDonough, 547 U. S. 198, 214 (2006) (Scalia, J., dissenting) (describing, inter alia, the Teague rule as having been “created by the habeas courts themselves, in the exercise of their traditional equitable discretion . . . because [it was] seen as necessary to protect the interests of comity and finality that federal collateral review of state criminal proceedings necessarily implicates”); Withrow v. Williams, 507 U. S. 680, 699 (1993) (O’Connor, J., concurring in part and dissenting in part) (listing Teague as one illustration of the principle that “federal courts exercising their habeas powers may refuse to grant relief on certain claims because of ‘prudential concerns’ such as equity and federalism”); 507 U. S., at 718 (Scalia, J., concurring in part and dissenting in part) (stating that Teague and other “gateways through which a habeas petitioner must pass before proceeding to the merits of a constitutional claim” are “grounded in the equitable discretion of habeas courts” (internal quotation marks and brackets omitted)); Teague, 489 U. S., at 317 (White, J., concurring in part and concurring in judgment) (characterizing Teague as a decision “construing the reach of the habeas corpus statutes” and contrasting it with Griffith, which “appear[s] to have constitutional underpinnings”); 489 U. S., at 332–333 (Brennan, J., dissenting) (characterizing Teague as an unwarranted change in “[this Court’s] interpretation of the federal habeas statute”); see also Mackey v. United States, 401 U. S. 667, 684 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (describing the problem of retroactivity as “a problem as to the scope of the habeas writ”). Footnote 16 The lower federal courts have also applied the Teague rule to motions to vacate, set aside, or correct a federal sentence pursuant to 28 U. S. C. §2255 (2000 ed., Supp. V). Much of the reasoning applicable to applications for writs of habeas corpus filed pursuant to §2254 seems equally applicable in the context of §2255 motions. See United States v. Hayman, 342 U. S. 205 (1952) (explaining that §2255 was enacted as a functional equivalent for habeas corpus to allow federal prisoners to bring a collateral attack in the court that imposed the sentence rather than a court that happened to be near the prison). Footnote 17 Today, the majority of state courts still read Teague this way. As far as we can tell, only three States—Minnesota, Oregon, and Montana—have adopted a contrary view. See Page, 336 Ore. 379, 84 P. 3d 133; Egelhoff, 272 Mont. 114, 900 P. 2d 260. Footnote 18 In Pearce, we held: “[W]henever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U. S., at 726. As the concurrence pointed out, some States already provided equivalent or broader protection against vindictive sentencing. See id., at 733–734, n. 4 (opinion of Douglas, J.). Footnote 19 Given the fact that Payne’s appeal was still pending on that date, however, the result would have been different and the views of the dissenting Justices would have prevailed if the case had been decided after our decision in Teague. Footnote 20 The relevant footnote in the Michigan Supreme Court’s opinion explained: “The United States Supreme Court has not yet decided whether Pearce is to be applied retroactively. Although the Court twice granted certiorari to consider the question, in each case the writ was subsequently dismissed as improvidently granted. Moon v. Maryland, cert granted (1969), 395 US 975, writ dismissed (1970), 398 US 319; Odom v. United States, cert granted (1970), 399 US 904, writ dismissed (1970), 400 US 23. We decline to predict the high Court’s answer to the question of Pearce’s retroactive or prospective application, but we will apply Pearce in the present case in order to instruct our trial courts as to the Michigan interpretation of an ambiguous portion of Pearce, discussed Infra, pending clarification by the United States Supreme Court.” People v. Payne, 386 Mich. 84, 90–91, n. 3, 191 N. W. 2d 375, 378, n. 2 (1971) (citations omitted). See also Reply Brief for Petitioner in Michigan v. Payne, O. T. 1972, No. 71–1005, p. 4 (“People v Payne, 386 Mich 84, 191 NW2d 375 (1971) expressly withheld ruling on the retroactivity of Pearce but applied it to Payne to instruct the lower courts in Michigan”). Footnote 21 See American Trucking Assns., Inc. v. Smith, 496 U. S., at 210, n. 4 (Stevens, J., dissenting) (“Payne does not stand for the expansive proposition that federal law limits the relief a State may provide, but only for the more narrow proposition that a state court’s decision that a particular remedy is constitutionally required is itself a federal question”). Footnote 22 While the opinions discussed at great length our earlier cases raising retroactivity issues, none of them suggested that federal law would prohibit Arkansas from refunding the taxes at issue if it wanted to do so. Footnote 23 The petitioners and the dissenters in American Trucking Assns., Inc. v. Smith relied heavily on separate opinions authored by Justice Harlan, and on the Court’s then-recent opinion in Griffith, 479 U. S. 314, supporting the proposition that a new constitutional holding should be applied not only in cases that had not yet been tried, but also in all cases still pending on direct review. The plurality, however, declined to follow Griffith because of its view that “there are important distinctions between the retroactive application of civil and criminal decisions that make the Griffith rationale far less compelling in the civil sphere.” 496 U. S., at 197. While Justice Harlan would probably disagree with the suggestion that the distinction between civil and criminal cases provided an acceptable basis for refusing to follow Griffith in the American Trucking Assns., Inc. v. Smith litigation, see Mackey, 401 U. S., at 683, n. 2 (opinion concurring in judgments in part and dissenting in part), if relevant, that same distinction would make it appropriate to disregard the plurality’s opinion in American Trucking Assns., Inc. v. Smith in this case. Footnote 24 See Boyle v. United Technologies Corp., 487 U. S. 500, 504 (1988) (“[W]e have held that a few areas, involving ‘uniquely federal interests,’ are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed … by the courts—so-called ‘federal common law’ ” (citation omitted)); United States v. Kimbell Foods, Inc., 440 U. S. 715 (1979); Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964).
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554.US.724
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Federal-law limits on the amount of contributions a House of Representatives candidate and his authorized committee may receive from an individual, and the amount his party may devote to coordinated campaign expenditures, 2 U. S. C. §§441a(a)(1)(A), (a)(3)(A), (c), and (d), normally apply equally to all competitors for a seat and their authorized committees. However, §319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U. S. C. §441a–1(a), part of the so-called “Millionaire’s Amendment,” fundamentally alters this scheme when, as a result of a candidate’s expenditure of personal funds, the “opposition personal funds amount” (OPFA) exceeds $350,000. The OPFA is a statistic comparing competing candidates’ personal expenditures and taking account of certain other fundraising. When a “self-financing” candidate’s personal expenditure causes the OPFA to pass $350,000, a new, asymmetrical regulatory scheme comes into play. The self-financing candidate remains subject to the normal limitations, but his opponent, the “non-self-financing” candidate, may receive individual contributions at treble the normal limit from individuals who have reached the normal limit on aggregate contributions, and may accept coordinated party expenditures without limit. See §§441a–1(a)(1)(A)–(C). Because calculating the OPFA requires certain information about the self-financing candidate’s campaign assets and personal expenditures, §319(b) requires him to file an initial “declaration of intent” revealing the amount of personal funds the candidate intends to spend in excess of $350,000, and to make additional disclosures to the other candidates, their national parties, and the Federal Election Commission (FEC) as his personal expenditures exceed certain benchmarks. Appellant Davis, a candidate for a House seat in 2004 and 2006 who lost both times to the incumbent, notified the FEC for the 2006 election, in compliance with §319(b), that he intended to spend $1 million in personal funds. After the FEC informed him it had reason to believe he had violated §319 by failing to report personal expenditures during the 2004 campaign, he filed this suit for a declaration that §319 is unconstitutional and an injunction preventing the FEC from enforcing the section during the 2006 election. The District Court concluded sU. S.onte that Davis had standing, but rejected his claims on the merits and granted the FEC summary judgment. Held: 1. This Court has jurisdiction to hear Davis’ appeal. Pp. 6–10. (a) Davis has standing to challenge §319(b)’s disclosure requirements. When he filed suit, he had already declared his 2006 candidacy and had been forced by §319(b) to disclose to his opponent that he intended to spend more than $350,000 in personal funds. He also faced the imminent threat that he would have to follow up on that disclosure with further notifications once he passed the $350,000 mark. Securing a declaration that §319(b) is unconstitutional and an injunction against its enforcement would have spared him from making those disclosures and also would have removed the real threat that the FEC would pursue an enforcement action based on alleged §319(b) violations during his 2004 campaign. Davis also has standing to challenge §319(a)’s asymmetrical contribution limits. The standing inquiry focuses on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed, see, e.g., Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180, and a party facing prospective injury has standing where the threatened injury is real, immediate, and direct, see, e.g., Los Angeles v. Lyons, 461 U. S. 95, 102. Davis faced the requisite injury from §319(a) when he filed suit: He had already declared his candidacy and his intent to spend more than $350,000 of personal funds in the general election campaign whose onset was rapidly approaching. Section 319(a) would shortly burden his personal expenditure by allowing his opponent to receive contributions on more favorable terms, and there was no indication that his opponent would forgo that opportunity. Pp. 6–8. (b) The FEC’s argument that the Court lacks jurisdiction because Davis’ claims are moot also fails. In Federal Election Comm’n v. Wisconsin Right to Life, Inc. (WRTL), 551 U. S. ___, this Court rejected a very similar claim of mootness, finding that the case “fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review.” Id., at ___. That “exception applies where ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’ ” Ibid. First, despite BCRA’s command that the case be expedited to the greatest possible extent and Davis’ request that his case be resolved before the 2006 election, the case could not be resolved before the 2006 election. See id., at ___. Second, the FEC has conceded that Davis’ §319(a) claim would be capable of repetition if he planned to self-finance another bid for a House seat, and he subsequently made a public statement expressing his intent to do so. See id., at ___ . Pp. 8–9. 2. Sections 319(a) and (b) violate the First Amendment. If §319(a)’s elevated contribution limits applied across the board to all candidates, Davis would have no constitutional basis for challenging them. Section 319(a), however, raises the limits only for non-self-financing candidates and only when the self-financing candidate’s expenditure of personal funds causes the OPFA threshold to be exceeded. This Court has never upheld the constitutionality of a law that imposes different contribution limits for candidates competing against each other, and it agrees with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech. In Buckley v. Valeo, 424 U. S. 1, the Court soundly rejected a cap on a candidate’s expenditure of personal funds to finance campaign speech, holding that a “candidate … has a First Amendment right to … vigorously and tirelessly … advocate his own election,” and that a cap on personal expenditures imposes “a substantial,” “clea[r,]” and “direc[t]” restraint on that right, id., at 52–53. It found the cap at issue not justified by “[t]he primary governmental interest” in “the prevention of actual and apparent corruption of the political process,” id., at 53, or by “[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office,” id., at 54. Buckley is instructive here. While BCRA does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right, requiring him to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. The resulting drag on First Amendment rights is not constitutional simply because it attaches as a consequence of a statutorily imposed choice. Id., at 54–57, and n. 65, distinguished. The burden is not justified by any governmental interest in eliminating corruption or the perception of corruption, see id., at 53. Nor can an interest in leveling electoral opportunities for candidates of different personal wealth justify §319(a)’s asymmetrical limits, see id., at 56–57. The Court has never recognized this interest as a legitimate objective and doing so would have ominous implications for the voters’ authority to evaluate the strengths of candidates competing for office. Finally, the Court rejects the Government’s argument that §319(a) is justified because it ameliorates the deleterious effects resulting from the tight limits federal election law places on individual campaign contributions and coordinated party expenditures. Whatever this argument’s merits as an original matter, it is fundamentally at war with Buckley’s analysis of expenditure and contributions limits, which this Court has applied in subsequent cases. Pp. 10–17. (c) Because §319(a) is unconstitutional, §319(b)’s disclosure requirements, which were designed to implement the asymmetrical contribution limits, are as well. “[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment,” Buckley, 424 U. S., at 64, so the Court closely scrutinizes such requirements, id., at 75. For significant encroachments to survive, there must be “a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed” and the governmental interest must reflect the seriousness of the burden on First Amendment rights. Ibid. Given §319(a)’s unconstitutionality, the burden imposed by the §319(b) requirements cannot be justified. P. 18. 501 F. Supp. 2d 22, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined as to Part II. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Part II. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined.
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; Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 437, 465 (2001) (Colorado II). At the same time, the Court has recognized that such limits implicate First Amendment interests and that they cannot stand unless they are “closely drawn” to serve a “sufficiently important interest,” such as preventing corruption and the appearance of corruption. See, e.g., McConnell v. Federal Election Comm’n, 540 U. S. 93, 136, 138, n. 40 (2003); Colorado II, supra, at 456; Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387–388 (2000); Buckley, supra, at 25–30, 38. When contribution limits are challenged as too restrictive, we have extended a measure of deference to the judgment of the legislative body that enacted the law. See, e.g., Randall v. Sorrell, 548 U. S. 230, 248 (2006) (plurality opinion); Nixon, supra, at 396–397; Buckley, supra, at 30, 111, 103–104. But we have held that limits that are too low cannot stand. Randall, supra, at 246–262; id., at 263 (Alito, J., concurring in part and concurring in judgment). There is, however, no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all; and if Congress concludes that allowing contributions of a certain amount does not create an undue risk of corruption or the appearance of corruption, a candidate who wishes to restrict an opponent’s fundraising cannot argue that the Constitution demands that contributions be regulated more strictly. Consequently, if §319(a)’s elevated contribution limits applied across the board, Davis would not have any basis for challenging those limits. B Section 319(a), however, does not raise the contribution limits across the board. Rather, it raises the limits only for the non-self-financing candidate and does so only when the self-financing candidate’s expenditure of personal funds causes the OPFA threshold to be exceeded. We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech. In Buckley, we soundly rejected a cap on a candidate’s expenditure of personal funds to finance campaign speech. We held that a “candidate … has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election” and that a cap on personal expenditures imposes “a substantial,” “clea[r]” and “direc[t]” restraint on that right. 424 U. S., at 52–53. We found that the cap at issue was not justified by “[t]he primary governmental interest” proffered in its defense, i.e., “the prevention of actual and apparent corruption of the political process.” Id., at 53. Far from preventing these evils, “the use of personal funds,” we observed, “reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which … contribution limitations are directed.” Ibid. We also rejected the argument that the expenditure cap could be justified on the ground that it served “[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office.” Id., at 54. This putative interest, we noted, was “clearly not sufficient to justify the … infringement of fundamental First Amendment rights.” Ibid. Buckley’s emphasis on the fundamental nature of the right to spend personal funds for campaign speech is instructive. While BCRA does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. Section 319(a) requires a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. Many candidates who can afford to make large personal expenditures to support their campaigns may choose to do so despite §319(a), but they must shoulder a special and potentially significant burden if they make that choice. See Day v. Holahan, 34 F. 3d 1356, 1359–1360 (CA8 1994) (concluding that a Minnesota law that increased a candidate’s expenditure limits and eligibility for public funds based on independent expenditures against her candidacy burdened the speech of those making the independent expenditures); Brief for Appellee 29 (conceding that “[§]319 does impose some consequences on a candidate’s choice to self-finance beyond certain amounts”). Under §319(a), the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents in the competitive context of electoral politics. Cf. Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 14 (1986) (plurality opinion) (finding infringement on speech rights where if the plaintiff spoke it could “be forced … to help disseminate hostile views”). The resulting drag on First Amendment rights is not constitutional simply because it attaches as a consequence of a statutorily imposed choice. In Buckley, we held that Congress “may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations” even though we found an independent limit on overall campaign expenditures to be unconstitutional. 424 U. S., at 57, n. 65; see id., at 54–58. But the choice involved in Buckley was quite different from the choice imposed by §319(a). In Buckley, a candidate, by forgoing public financing, could retain the unfettered right to make unlimited personal expenditures. Here, §319(a) does not provide any way in which a candidate can exercise that right without abridgment. Instead, a candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits. The choice imposed by §319(a) is not remotely parallel to that in Buckley. Because §319(a) imposes a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech, that provision cannot stand unless it is “justified by a compelling state interest,” Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256 (1986); see also, e.g., McConnell, 540 U. S., at 205; Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 657–658 (1990); id., at 680 (Scalia, J., dissenting); id., at 701, 702–703 (Kennedy, J., dissenting); Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 500–501 (1985); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 609 (1996) (principal opinion) (Colorado I); id., at 640–641 (Thomas, J., concurring in judgment and dissenting in part). No such justification is present here.[Footnote 7] The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. Similarly, given Congress’ judgment that liberalized limits for non-self-financing candidates do not unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to self-financing candidates can be regarded as serving anticorruption goals sufficiently to justify the resulting constitutional burden. The Government maintains that §319(a)’s asymmetrical limits are justified because they “level electoral opportunities for candidates of different personal wealth.” Brief for Appellee 34. “Congress enacted Section 319,” the Government writes,” “to reduce the natural advantage that wealthy individuals possess in campaigns for federal office.” Id., at 33 (emphasis added). Our prior decisions, however, provide no support for the proposition that this is a legitimate government objective. See Nixon, 528 U. S., at 428 (Thomas, J., dissenting) (“ ‘[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances’ ” (quoting National Conservative Political Action Comm., supra, at 496–497)); Randall, 548 U. S., at 268 (Thomas, J., concurring in judgment) (noting “the interests the Court has recognized as compelling, i.e., the prevention of corruption or the appearance thereof”). On the contrary, in Buckley, we held that “[t]he interest in equalizing the financial resources of candidates” did not provide a “justification for restricting” candidates’ overall campaign expenditures, particularly where equalization “might serve … to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.” 424 U. S., at 56–57. We have similarly held that the interest “in equalizing the relative ability of individuals and groups to influence the outcome of elections” cannot support a cap on expenditures for “express advocacy of the election or defeat of candidates,” as “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Id., at 48–49; see also McConnell, supra, at 227 (noting, in assessing standing, that there is no legal right to have the same resources to influence the electoral process). Cf. Austin, supra, at 705 (Kennedy, J., dissenting) (rejecting as “antithetical to the First Amendment” “the notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections”). The argument that a candidate’s speech may be restricted in order to “level electoral opportunities” has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office. See Bellotti, supra, at 791–792 (“[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments” and “may consider, in making their judgment, the source and credibility of the advocate”). Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters’ choices. See Bellotti, 435 U. S., at 791, n. 31 (The “[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves”). Finally, the Government contends that §319(a) is justified because it ameliorates the deleterious effects that result from the tight limits that federal election law places on individual campaign contributions and coordinated party expenditures. These limits, it is argued, make it harder for candidates who are not wealthy to raise funds and therefore provide a substantial advantage for wealthy candidates. Accordingly, §319(a) can be seen, not as a legislative effort to interfere with the natural operation of the electoral process, but as a legislative effort to mitigate the untoward consequences of Congress’ own handiwork and restore “the normal relationship between a candidate’s financial resources and the level of popular support for his candidacy.” Brief for Appellee 33. Whatever the merits of this argument as an original matter, it is fundamentally at war with the analysis of expenditure and contributions limits that this Court adopted in Buckley and has applied in subsequent cases. The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley’s disparate treatment of expenditures and contributions. If that approach is sound—and the Government does not urge us to hold otherwise[Footnote 8]—it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest. If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process, if they are feeding a “public perception that wealthy people can buy seats in Congress,” Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits. But the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment. IV The remaining issue that we must consider is the constitutionality of §319(b)’s disclosure requirements. “[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley, 424 U. S., at 64. As a result, we have closely scrutinized disclosure requirements, including requirements governing independent expenditures made to further individuals’ political speech. Id., at 75. To survive this scrutiny, significant encroachments “cannot be justified by a mere showing of some legitimate governmental interest.” Id., at 64. Instead, there must be “a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and the information required to be disclosed,” and the governmental interest “must survive exacting scrutiny.” Ibid. (footnotes omitted). That is, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights. Id., at 68, 71. The §319(b) disclosure requirements were designed to implement the asymmetrical contribution limits provided for in §319(a), and as discussed above, §319(a) violates the First Amendment. In light of that holding, the burden imposed by the §319(b) requirements cannot be justified, and it follows that they too are unconstitutional.[Footnote 9] * * * In sum, we hold that §§319(a) and (b) violate the First Amendment. The judgment of the District Court is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Appendix BCRA §319(a) provides: “(a) Availability of increased limit “(1) In general “Subject to paragraph (3), if the opposition personal funds amount with respect to a candidate for election to the office of Representative in, or Delegate or Resident Commissioner to, the Congress exceeds $350,000— “(A) the limit under subsection (a)(1)(A) with respect to the candidate shall be tripled; “(B) the limit under subsection (a)(3) shall not apply with respect to any contribution made with respect to the candidate if the contribution is made under the increased limit allowed under subparagraph (A) during a period in which the candidate may accept such a contribution; and “(C) the limits under subsection (d) with respect to any expenditure by a State or national committee of a political party on behalf of the candidate shall not apply. “(2) Determination of opposition personal funds amount “(A) In general “The opposition personal funds amount is an amount equal to the excess (if any) of— “(i) the greatest aggregate amount of expenditures from personal funds (as defined in subsection (b)(1) of this section) that an opposing candidate in the same election makes; over “(ii) the aggregate amount of expenditures from personal funds made by the candidate with respect to the election. “(B) Special rule for candidate’s campaign funds “(i) In general “For purposes of determining the aggregate amount of expenditures from personal funds under subparagraph (A), such amount shall include the gross receipts advantage of the candidate’s authorized committee. “(ii) Gross receipts advantage “For purposes of clause (i), the term “gross receipts advantage” means the excess, if any, of— “(I) the aggregate amount of 50 percent of gross receipts of a candidate’s authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held, over “(II) the aggregate amount of 50 percent of gross receipts of the opposing candidate’s authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held. “(3) Time to accept contributions under increased limit “(A) In general “Subject to subparagraph (B), a candidate and the candidate’s authorized committee shall not accept any contribution, and a party committee shall not make any expenditure, under the increased limit under paragraph (1)— “(i) until the candidate has received notification of the opposition personal funds amount under subsection (b)(1) of this section; and “(ii) to the extent that such contribution, when added to the aggregate amount of contributions previously accepted and party expenditures previously made under the increased limits under this subsection for the election cycle, exceeds 100 percent of the opposition personal funds amount. “(B) Effect of withdrawal of an opposing candidate “A candidate and a candidate’s authorized committee shall not accept any contribution and a party shall not make any expenditure under the increased limit after the date on which an opposing candidate ceases to be a candidate to the extent that the amount of such increased limit is attributable to such an opposing candidate. “(4) Disposal of excess contributions “(A) In general “The aggregate amount of contributions accepted by a candidate or a candidate’s authorized committee under the increased limit under paragraph (1) and not otherwise expended in connection with the election with respect to which such contributions relate shall, not later than 50 days after the date of such election, be used in the manner described in subparagraph (B). “(B) Return to contributors “A candidate or a candidate’s authorized committee shall return the excess contribution to the person who made the contribution.” “(b) Notification of expenditures from personal funds “(1) In general “(A) Definition of expenditure from personal funds In this paragraph, the term “expenditure from personal funds” means— “(i) an expenditure made by a candidate using personal funds; and “(ii) a contribution or loan made by a candidate using personal funds or a loan secured using such funds to the candidate’s authorized committee. “(B) Declaration of intent “Not later than the date that is 15 days after the date on which an individual becomes a candidate for the office of Representative in, or Delegate or Resident Commissioner to, the Congress, the candidate shall file a declaration stating the total amount of expenditures from personal funds that the candidate intends to make, or to obligate to make, with respect to the election that will exceed $350,000. “(C) Initial notification “Not later than 24 hours after a candidate described in subparagraph (B) makes or obligates to make an aggregate amount of expenditures from personal funds in excess of $350,000 in connection with any election, the candidate shall file a notification. “(D) Additional notification “After a candidate files an initial notification under subparagraph (C), the candidate shall file an additional notification each time expenditures from personal funds are made or obligated to be made in an aggregate amount that exceeds $10,000. Such notification shall be filed not later than 24 hours after the expenditure is made. “(E) Contents “A notification under subparagraph (C) or (D) shall include— “(i) the name of the candidate and the office sought by the candidate; “(ii) the date and amount of each expenditure; and “(iii) the total amount of expenditures from personal funds that the candidate has made, or obligated to make, with respect to an election as of the date of the expenditure that is the subject of the notification. “(F) Place of filing “Each declaration or notification required to be filed by a candidate under subparagraph (C), (D), or (E) shall be filed with— “(i) the Commission; and “(ii) each candidate in the same election and the national party of each such candidate. “(2) Notification of disposal of excess contributions “In the next regularly scheduled report after the date of the election for which a candidate seeks nomination for election to, or election to, Federal office, the candidate or the candidate’s authorized committee shall submit to the Commission a report indicating the source and amount of any excess contributions (as determined under subsection (a) of this section) and the manner in which the candidate or the candidate’s authorized committee used such funds. “(3) Enforcement “For provisions providing for the enforcement of the reporting requirements under this subsection, see section 437g of this title.” 2 U. S. C. §441a–1 (footnotes omitted). Footnote 1 All undesignated references in this opinion to 2 U. S. C. are to the 2006 edition. Footnote 2 These limits are adjusted for inflation every two years. 2 U. S. C. §441a(c). Footnote 3 BCRA §319(a) is set out in an Appendix to this opinion. Although what we refer to as §§319(a) and (b) are actually §315A(a) and (b) of the Federal Election Campaign Act of 1971, which were added to that Act by BCRA §319(a), we follow the convention of the parties in making reference to §§319(a) and (b). Footnote 4 BCRA §304 similarly regulates self-financed Senate bids. 116 Stat. 97, 2 U. S. C. §441a(i). Footnote 5 The OPFA is calculated as follows. For each candidate, expenditures of personal funds are added to 50% of the funds raised for the election at issue measured at designated dates in the year preceding the election. The resulting figures are compared, and if the difference is greater than $350,000, the asymmetrical limits take effect. See §§441a–1(a)(1), (2). Footnote 6 In light of this conclusion, we need not decide whether the threat of an FEC enforcement action for alleged 2004 violations would be sufficient to keep this controversy alive. Footnote 7 Even if §319(a) were characterized as a limit on contributions rather than expenditures, it is doubtful whether it would survive. A contribution limit involving “ ‘ “significant interference” with associational rights’ ” must be “ ‘ “closely drawn” ’ ” to serve a “ ‘ “sufficiently important interest.” ’ ” McConnell v. Federal Election Comm’n, 540 U. S. 93, 136 (2003). For the reasons explained infra, at 15–16, the chief interest proffered in support of the asymmetrical contribution scheme—leveling electoral opportunities—cannot justify the infringement of First Amendment interests. Footnote 8 Justice Stevens would revisit and reject Buckley’s treatment of expenditure limits. Post, at 2–4 (opinion concurring in part and dissenting in part). The Government has not urged us to take that step, and in any event, Justice Stevens’ proposal is unsound. He suggests that restricting the quantity of campaign speech would improve the quality of that speech, but it would be dangerous for the Government to regulate core political speech for the asserted purpose of improving that speech. And in any event, there is no reason to suppose that restricting the quantity of campaign speech would have the desired effect. Footnote 9 Because we conclude that §§319(a) and (b) violate the First Amendment, we need not address Davis’ claim that they also violate the equal protection component of the Fifth Amendment’s Due Process Clause.
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553.US.328
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Kentucky exempts from state income taxes interest on bonds issued by it or its political subdivisions but not on bonds issued by other States and their subdivisions. After paying state income tax on out-of-state municipal bonds, respondents sued petitioners (hereinafter Kentucky) for a refund, claiming that Kentucky’s differential tax impermissibly discriminated against interstate commerce. The trial court ruled for Kentucky, relying in part on a “market-participation” exception to the dormant Commerce Clause limit on state regulation. The State Court of Appeals reversed, finding that Kentucky’s scheme ran afoul of the Commerce Clause. Held: The judgment is reversed, and the case is remanded. 197 S. W. 3d 557, reversed and remanded. Justice Souter delivered the opinion of the Court, except as to Part III–B, concluding that Kentucky’s differential tax scheme does not offend the Commerce Clause. Pp. 7–13, 20–28. (a) Modern dormant Commerce Clause law is driven by concern about “economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors,” New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 273–274—but that concern is limited by federalism favoring a degree of local autonomy. Under the resulting analysis, a discriminatory law is “virtually per se invalid.” Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 99. An exception covers States that go beyond regulation and themselves “participat[e] in the market” to “exercis[e] the right to favor [their] own citizens over others,” Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 810, reflecting a “basic distinction … between States as market participants and States as market regulators,” Reeves, Inc. v. Stake, 447 U. S. 429, 436. Last Term, in a case decided independently of the market participant exception, this Court upheld an ordinance requiring trash haulers to deliver solid waste to a public authority’s processing plant, finding that it addressed what was “ ‘both typically and traditionally a local government function,’ ” and did “not discriminate against interstate commerce for purposes of the dormant Commerce Clause,” United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S. ___, ___. Pp. 7–10. (b) United Haulers provides a firm basis for reversal here. The logic that a government function is not susceptible to standard dormant Commerce Clause scrutiny because it is likely motivated by legitimate objectives distinct from simple economic protectionism applies with even greater force to laws favoring a State’s municipal bonds, since issuing debt securities to pay for public projects is a quintessentially public function, with a venerable history. Bond proceeds are a way to shoulder the cardinal civic responsibilities listed in United Haulers: protecting citizens’ health, safety, and welfare. And United Haulers’ apprehension about “unprecedented … interference” with a traditional government function is warranted here, where respondents would have this Court invalidate a century-old taxing practice presently employed by 41 States and supported by all. In fact, emphasizing an enterprise’s public character is just one step in addressing the fundamental element of dormant Commerce Clause jurisprudence that “any notion of discrimination assumes a comparison of substantially similar entities,” id., at ___. Viewed through the lens of Bonaparte v. Tax Court, 104 U. S. 592, there is no forbidden discrimination because Kentucky, as a public entity, does not have to treat itself as being “substantially similar” to other bond issuers in the market. Pp. 11–13. (c) A look at the specific markets in which the exemption’s effects are felt confirms that no traditionally forbidden discrimination is underway and points to the tax policy’s distinctive character. In both the interstate market as most broadly conceived—issuers and holders of all fixed-income securities—and the more specialized market—commerce solely in federally tax-exempt municipal bonds, often conducted through interstate municipal bond funds—nearly every taxing State believes its public interests are served by the same tax-and-exemption feature which is supported in this Court by every State. These facts suggest that no State perceives any local advantage or disadvantage beyond the permissible ones open to a government and to those who deal with that government when it enters the market. An equally significant perception emerges from examining the market for municipal bonds within the issuing State, a large proportion of which market is managed by one or more single-state funds. An important feature of such markets is that intrastate funds absorb securities issued by smaller or lesser known municipalities that interstate markets tend to ignore. Many single-state funds would likely disappear if the current differential tax schemes were upset, and there is no suggestion that the interstate markets would welcome the weaker municipal issues that would lose their local market homes after a Davis victory. Financing for long-term municipal improvements would thus change radically if the differential tax feature disappeared. The fact that the differential tax scheme is critical to the operation of an identifiable segment of the current municipal financial market demonstrates that the States’ unanimous desire to preserve the scheme is a far cry from the private protectionism that has driven the dormant Commerce Clause’s development. Pp. 20–23. (e) The Court generally applies the rule in Pike v. Bruce Church, Inc., 397 U. S. 137, 142, that even nondiscriminatory burdens on commerce may be struck down on a showing that they clearly outweigh the benefits of a state or local practice. But the current record and scholarly material show that the Judicial Branch is not institutionally suited to draw reliable conclusions of the kind that would be necessary for the Davises to satisfy a Pike burden in this particular case. Pp. 23–27. Souter, J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III–B. Stevens and Breyer, JJ., joined that opinion in full; Roberts, C. J., and Ginsburg, J., joined all but Part III–B; and Scalia, J., joined all but Parts III–B and IV. Stevens, J., filed a concurring opinion. Roberts, C. J., and Scalia, J., filed opinions concurring in part. Thomas, J., filed an opinion concurring in the judgment. Kennedy, J., filed a dissenting opinion, in which Alito, J., joined. Alito, J., filed a dissenting opinion.
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except as to Part III–B.* For the better part of two centuries States and their political subdivisions have issued bonds for public purposes, and for nearly half that time some States have exempted interest on their own bonds from their state income taxes, which are imposed on bond interest from other States. The question here is whether Kentucky’s version of this differential tax scheme offends the Commerce Clause. We hold that it does not. I A Like most other States, the Commonwealth of Kentucky taxes its residents’ income. See Ky. Rev. Stat. Ann. §141.020(1) (West 2006). The tax is assessed on “net income,” see ibid., calculated by reference to “gross income” as defined by the Internal Revenue Code, see §§141.010(9)–(11) (West Supp. 2007),[Footnote 1] which excludes “interest on any State or local bond” (“municipal bond,” for short[Footnote 2]), 26 U. S. C. §103(a). Kentucky piggybacks on this exclusion, but only up to a point: it adds “interest income derived from obligations of sister states and political subdivisions thereof” back into the taxable net. Ky. Rev. Stat. Ann. §141.010(10)(c). Interest on bonds issued by Kentucky and its political subdivisions is thus entirely exempt,[Footnote 3] whereas interest on municipal bonds of other States and their subdivisions is taxable. (Interest on bonds issued by private entities is taxed by Kentucky regardless of the private issuer’s home.) The ostensible reason for this regime is the attractiveness of tax-exempt bonds at “lower rates of interest … than that paid on taxable … bonds of comparable risk.” M. Graetz & D. Schenk, Federal Income Taxation 215 (5th ed. 2005) (hereinafter Graetz & Schenk). Under the Internal Revenue Code, for example, see 26 U. S. C. §103, “if the market rate of interest is 10 percent on a comparable corporate bond, a municipality could pay only 6.5 percent on its debt and a purchaser in a 35 percent marginal tax bracket would be indifferent between the municipal and the corporate bond, since the after-tax interest rate on the corporate bond is 6.5 percent,” Graetz & Schenk 215.[Footnote 4] The differential tax scheme in Kentucky works the same way; the Commonwealth’s tax benefit to residents who buy its bonds makes lower interest rates acceptable,[Footnote 5] while limiting the exception to Kentucky bonds raises in-state demand for them without also subsidizing other issuers. The significance of the scheme is immense. Between 1996 and 2002, Kentucky and its subdivisions issued $7.7 billion in long-term bonds to pay for spending on transportation, public safety, education, utilities, and environmental protection, among other things. IRS, Statistics of Income Bulletin, C. Belmonte, Tax-Exempt Bonds, 1996–2002, pp. 169–170, http://www.irs.gov/pub/irs-soi/02gov bnd.pdf (as visited Jan. 23, 2008, and available in Clerk of Court’s case file). Across the Nation during the same period, States issued over $750 billion in long-term bonds, with nearly a third of the money going to education, followed by transportation (13%) and utilities (11%). See ibid. Municipal bonds currently finance roughly two-thirds of capital expenditures by state and local governments. L. Thomas, Money, Banking and Financial Markets 55 (2006). Funding the work of government this way follows a tradition going back as far as the 17th century. See C. Johnson & M. Rubin, The Municipal Bond Market: Structure and Changes, in Handbook of Public Finance 483, 485 (F. Thompson & M. Green eds. 1998) (“[In] 1690 … Massachusetts issued bills of credit to pay soldiers who had participated in an unsuccessful raid on the City of Quebec”). Municipal bonds first appeared in the United States in the early 19th century: “New York City began to float [debt] securities in about 1812,” A. Hillhouse, Municipal Bonds: A Century of Experience 31 (1936) (hereinafter Hillhouse), and by 1822 Boston “had a bonded debt of $100,000,” id., at 32. The municipal bond market had swelled by the mid-1840s, when the aggregate debt of American cities exceeded $27 million, and the total debt of the States was nearly 10 times that amount. See ibid. Bonds funded some of the great public works of the day, including New York City’s first water system, see id., at 31, and the Erie Canal, see R. Amdursky & C. Gillette, Municipal Debt Finance Law §1.2.1, p. 15 (1992) (hereinafter Amdursky & Gillette). At the turn of the 20th century, the total state and municipal debt was closing in on $2 billion, see Hillhouse 35, and by the turn of the millennium, over “$1.5 trillion in municipal bonds were outstanding,” J. Temel, The Fundamentals of Municipal Bonds, p. ix (5th ed. 2001). Differential tax schemes like Kentucky’s have a long pedigree, too. State income taxation became widespread in the early 20th century, see A. Comstock, State Taxation of Personal Incomes 11 (1921) (reprinted 2005) (hereinafter Comstock), and along with the new tax regimes came exemptions and deductions, see id., at 171–184, to induce all sorts of economic behavior, including lending to state and local governments at favorable rates of untaxed interest. New York enacted the first of these statutes in 1919, see 1919 N. Y. Laws pp. 1641–1642, the same year it imposed an income tax, see Comstock 104,[Footnote 6] and other States followed, see, e.g., 1921 N. C. Sess. Laws p. 208; 1923 N. H. Laws p. 78; 1926 Va. Acts ch. 576, pp. 960–961, with Kentucky joining the pack in 1936, see 1936 Ky. Acts p. 71. Today, 41 States have laws like the one before us.[Footnote 7] B Petitioners (for brevity, Kentucky or the Commonwealth) collect the Kentucky income tax. Respondents George and Catherine Davis are Kentucky residents who paid state income tax on interest from out-of-state municipal bonds, and then sued the tax collectors in state court on a refund claim that Kentucky’s differential taxation of municipal bond income impermissibly discriminates against interstate commerce in violation of the Commerce Clause of the National Constitution. The trial court granted judgment to the Commonwealth, relying in part on our cases recognizing the “market-participant” exception to the dormant Commerce Clause limit on state regulation. See App. to Pet. for Cert. A18–A19 (citing Reeves, Inc. v. Stake, 447 U. S. 429 (1980), and Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976)). The Court of Appeals of Kentucky reversed. See 197 S. W. 3d 557 (2006). In a brief discussion, it rejected the reasoning of an Ohio case upholding a similar tax scheme challenged under the Commerce Clause, see id., at 563 (discussing Shaper v. Tracy, 97 Ohio App. 3d 750, 647 N. E. 2d 550 (1994)), and distinguished our market participant cases, see 197 S. W. 3d, at 564, as well as a decision from the 19th century the Commonwealth relied on, see id., at 563–564 (discussing Bonaparte v. Tax Court, 104 U. S. 592 (1882)). The Court of Appeals thought it had “no choice but to find that Kentucky’s system of taxing only extraterritorial bonds runs afoul of the Commerce Clause,” 197 S. W. 3d, at 564, and the Supreme Court of Kentucky denied the Commonwealth’s motion for discretionary review, see App. to Pet. for Cert. A14. We granted certiorari owing to the conflict this raised on an important question of constitutional law, and because the result reached casts constitutional doubt on a tax regime adopted by a majority of the States. 550 U. S. ___ (2007). We now reverse. II The Commerce Clause empowers Congress “[t]o regulate Commerce … among the several States,” Art. I, §8, cl. 3, and although its terms do not expressly restrain “the several States” in any way, we have sensed a negative implication in the provision since the early days, see, e.g., Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 318–319 (1852); cf. Gibbons v. Ogden, 9 Wheat. 1, 209 (1824) (Marshall, C. J.) (dictum). The modern law of what has come to be called the dormant Commerce Clause is driven by concern about “economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 273–274 (1988). The point is to “effectuat[e] the Framers’ purpose to ‘prevent a State from retreating into [the] economic isolation,’ ” Fulton Corp. v. Faulkner, 516 U. S. 325, 330 (1996) (quoting Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U. S. 175, 180 (1995); brackets omitted), “that had plagued relations among the Colonies and later among the States under the Articles of Confederation,” Hughes v. Oklahoma, 441 U. S. 322, 325–326 (1979). The law has had to respect a cross purpose as well, for the Framers’ distrust of economic Balkanization was limited by their federalism favoring a degree of local autonomy. Compare The Federalist Nos. 7 (A. Hamilton), 11 (A. Hamilton), and 42 (J. Madison), with The Federalist No. 51 (J. Madison); see also Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 546 (1985) (“The essence of our federal system is that within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal”). Under the resulting protocol for dormant Commerce Clause analysis, we ask whether a challenged law discriminates against interstate commerce. See Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 99 (1994). A discriminatory law is “virtually per se invalid,” ibid.; see also Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978), and will survive only if it “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives,” Oregon Waste Systems, supra, at 101 (internal quotation marks omitted); see also Maine v. Taylor, 477 U. S. 131, 138 (1986). Absent discrimination for the forbidden purpose, however, the law “will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). State laws frequently survive this Pike scrutiny, see, e.g., United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S. ___, ___–___ (2007) (slip op., at 14–15) (plurality opinion); Northwest Central Pipeline Corp. v. State Corporation Comm’n of Kan., 489 U. S. 493, 525–526 (1989); Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 472–474 (1981), though not always, as in Pike itself, 397 U. S., at 146. Some cases run a different course, however, and an exception covers States that go beyond regulation and themselves “participat[e] in the market” so as to “exercis[e] the right to favor [their] own citizens over others.” Alexandria Scrap, 426 U. S., at 810. This “market-participant” exception reflects a “basic distinction . . . between States as market participants and States as market regulators,” Reeves, 447 U. S., at 436, “[t]here [being] no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market,” id., at 437. See also White v. Massachusetts Council of Constr. Employers, Inc., 460 U. S. 204, 208 (1983) (“[W]hen a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause”). Thus, in Alexandria Scrap, we found that a state law authorizing state payments to processors of automobile hulks validly burdened out-of-state processors with more onerous documentation requirements than their in-state counterparts. Likewise, Reeves accepted South Dakota’s policy of giving in-state customers first dibs on cement produced by a state-owned plant, and White held that a Boston executive order requiring half the workers on city-financed construction projects to be city residents passed muster. Our most recent look at the reach of the dormant Commerce Clause came just last Term, in a case decided independently of the market participation precedents. United Haulers, supra, upheld a “flow control” ordinance requiring trash haulers to deliver solid waste to a processing plant owned and operated by a public authority in New York State. We found “[c]ompelling reasons” for “treating [the ordinance] differently from laws favoring particular private businesses over their competitors.” Id., at ___ (slip op., at 10). State and local governments that provide public goods and services on their own, unlike private businesses, are “vested with the responsibility of protecting the health, safety, and welfare of [their] citizens,” ibid., and laws favoring such States and their subdivisions may “be directed toward any number of legitimate goals unrelated to protectionism,” id., at ___ (slip op., at 11). That was true in United Haulers, where the ordinance addressed waste disposal, “both typically and traditionally a local government function.” Id., at ___ (slip op., at 12) (quoting United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 261 F. 3d 245, 264 (CA2 2001) (Calabresi, J., concurring); internal quotation marks omitted). And if more had been needed to show that New York’s object was consequently different from forbidden protectionism, we pointed out that “the most palpable harm imposed by the ordinances—more expensive trash removal—[was] likely to fall upon the very people who voted for the laws,” rather than out-of-state interests. United Haulers, 550 U. S., at ___ (slip op., at 13). Being concerned that a “contrary approach . . . would lead to unprecedented and unbounded interference by the courts with state and local government,” id., at ___ (slip op., at 11), we held that the ordinance did “not discriminate against interstate commerce for purposes of the dormant Commerce Clause,” id., at ___ (slip op., at 10).[Footnote 8] III A It follows a fortiori from United Haulers that Kentucky must prevail. In United Haulers, we explained that a government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors. See id., at ___ (slip op., at 11) (“Laws favoring local government … may be directed toward any number of legitimate goals unrelated to protectionism”); see also id., at ___ (slip op., at 12) (noting that “[w]e should be particularly hesitant to interfere … under the guise of the Commerce Clause” where a local government engages in a traditional government function).[Footnote 9] This logic applies with even greater force to laws favoring a State’s municipal bonds, given that the issuance of debt securities to pay for public projects is a quintessentially public function, with the venerable history we have already sketched, see supra, at 4–5. By issuing bonds, state and local governments “sprea[d] the costs of public projects over time,” Amdursky & Gillette §1.1.3, at 11, much as one might buy a house with a loan subject to monthly payments. Bonds place the cost of a project on the citizens who benefit from it over the years, see ibid., and they allow for public work beyond what current revenues could support, see id., §1.2, at 12–13. Bond proceeds are thus the way to shoulder the cardinal civic responsibilities listed in United Haulers: protecting the health,[Footnote 10] safety,[Footnote 11] and welfare[Footnote 12] of citizens. It should go without saying that the apprehension in United Haulers about “unprecedented . . . interference” with a traditional government function is just as warranted here, where the Davises would have us invalidate a century-old taxing practice, see supra, at 5, presently employed by 41 States, see n. 7, supra, and affirmatively supported by all of them, see Brief for 49 States as Amici Curiae. In fact, this emphasis on the public character of the enterprise supported by the tax preference is just a step in addressing a fundamental element of dormant Commerce Clause jurisprudence, the principle that “any notion of discrimination assumes a comparison of substantially similar entities.” United Haulers, 550 U. S., at ___ (slip op., at 10) (internal quotation marks omitted) (quoting General Motors Corp. v. Tracy, 519 U. S. 278, 298 (1997)). In Bonaparte v. Tax Court, 104 U. S. 592 (1882), a case involving the Full Faith and Credit Clause, we held that a foreign State is properly treated as a private entity with respect to state-issued bonds that have traveled outside its borders. See id., at 595 (beyond its borders, a debtor State “is compelled to go into the market as a borrower, subject to the same disabilities in this particular as individuals,” and has none “of the attributes of sovereignty as to the debt it owes”). Viewed through this lens, the Kentucky tax scheme parallels the ordinance upheld in United Haulers: it “benefit[s] a clearly public [issuer, that is, Kentucky], while treating all private [issuers] exactly the same.” 550 U. S., at ___ (slip op., at 10). There is no forbidden discrimination because Kentucky, as a public entity, does not have to treat itself as being “substantially similar” to the other bond issuers in the market.[Footnote 13] Thus, United Haulers provides a firm basis for reversal. Just like the ordinances upheld there, Kentucky’s tax exemption favors a traditional government function without any differential treatment favoring local entities over substantially similar out-of-state interests. This type of law does “not ‘discriminate against interstate commerce’ for purposes of the dormant Commerce Clause.” Id., at ___ (slip op., at 13). B This case, like United Haulers, may also be seen under the broader rubric of the market participation doctrine, although the Davises say that market participant cases are inapposite here. In their view, we may not characterize state action under the Kentucky statutes as market activity for public purposes, because this would ignore a fact absent in United Haulers but central here: this is a case about differential taxation, and a difference that amounts to a heavier tax burden on interstate activity is forbidden, see, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564 (1997) (invalidating statute exempting charities from real estate and personal property taxes unless conducted or operated principally for the benefit of out-of-state residents); Fulton Corp., 516 U. S. 325 (striking down tax on corporate stock held by state residents, where rate of tax was inversely proportional to the corporation’s exposure to the State’s income tax); Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984) (holding excise tax on sale of liquor at wholesale unconstitutional because it exempted some locally produced alcoholic beverages). The Davises make a fair point to the extent that they argue that Kentucky acts in two roles at once, issuing bonds and setting taxes, and if looked at as a taxing authority it seems to invite dormant Commerce Clause scrutiny of its regulatory activity, see Walling v. Michigan, 116 U. S. 446, 455 (1886) (“A discriminating tax imposed by a State operating to the disadvantage of the products of other States when introduced into the first mentioned State, is, in effect, a regulation in restraint of commerce among the States, and as such is a usurpation of the power conferred by the Constitution upon the Congress”); see also Camps Newfound, supra, at 578 (“[I]t is clear that discriminatory burdens on interstate commerce imposed by regulation or taxation may . . . violate the Commerce Clause”); Tracy, supra, at 287 (“The negative or dormant implication of the Commerce Clause prohibits state taxation . . . that discriminates against or unduly burdens interstate commerce”). But there is no ignoring the fact that imposing the differential tax scheme makes sense only because Kentucky is also a bond issuer. The Commonwealth has entered the market for debt securities, just as Maryland entered the market for automobile hulks, see Alexandria Scrap, 426 U. S., at 806, and South Dakota entered the cement market, see Reeves, 447 U. S., at 440. It simply blinks this reality to disaggregate the Commonwealth’s two roles and pretend that in exempting the income from its securities, Kentucky is independently regulating or regulating in the garden variety way that has made a State vulnerable to the dormant Commerce Clause. States that regulated the price of milk, see, e.g., West Lynn Creamery, Inc. v. Healy, 512 U. S. 186 (1994); Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935), did not keep herds of cows or compete against dairy producers for the dollars of milk drinkers. But when Kentucky exempts its bond interest, it is competing in the market for limited investment dollars, alongside private bond issuers and its sister States, and its tax structure is one of the tools of competition.[Footnote 14] The failure to appreciate that regulation by taxation here goes hand in hand with market participation by selling bonds allows the Davises to advocate the error of focusing exclusively on the Commonwealth as regulator and ignoring the Commonwealth as bond seller, see Brief for Respondents 36–39, just as the state court did in saying that “ ‘when a state chooses to tax its citizens, it is acting as a market regulator[,]’ not as a market participant.” 197 S. W. 3d, at 564 (quoting Shaper, 97 Ohio App. 3d, at 764, 647 N. E. 2d, at 552).[Footnote 15] To indulge in this single vision, however, would require overruling most, if not all, of the cases on point decided since Alexandria Scrap. White, for example, also scrutinized a government acting in dual roles. The mayor of Boston promulgated an executive order that bore the hallmarks of regulation: it applied to every construction project funded wholly or partially by city funds (or funds administered by the city), and it imposed general restrictions on the hiring practices of private contractors, mandating that 50% of their work forces be bona fide Boston residents and setting thresholds for minorities (25%) and women (10%) as well. See 460 U. S., at 205, n. 1; see also id., at 218–219 (Blackmun, J., concurring in part and dissenting in part) (“The executive order in this case … is a direct attempt to govern private economic relationships… . [It] is the essence of regulation”). At the same time, the city took part in the market by “expend[ing] its own funds in entering into construction contracts for public projects.” Id., at 214–215 (opinion of the Court). After speaking of “ ‘[t]he basic distinction … between States as market participants and States as market regulators,’ ” id., at 207 (quoting Reeves, supra, at 436–437), White did not dissect Boston’s conduct and ignore the former. Instead, the Court treated the regulatory activity in favor of local and minority labor as terms or conditions of the government’s efforts in its market role, which was treated as dispositive. Similarly, in Alexandria Scrap, Maryland employed the tools of regulation to invigorate its participation in the market for automobile hulks. The specific controversy there was over documentation requirements included in a “comprehensive statute designed to speed up the scrap cycle.” 426 U. S., at 796. Superficially, the scheme was regulatory in nature; but the Court’s decision was premised on its view that, in practical terms, Maryland had not only regulated but had also “entered into the market itself to bid up [the] price” of automobile hulks. See id., at 806. United Haulers, though not placed under the market participant umbrella, may be seen as another example. Not only did the public authority acting in that case process trash, but its governmental superiors forbade trash haulers to deal with any other processors. This latter fact did not determine the outcome, however; the dispositive fact was the government’s own activity in processing trash. We upheld the government’s decision to shut down the old market for trash processing only because it created a new one all by itself, and thereby became a participant in a market with just one supplier of a necessary service. If instead the government had created a monopoly in favor of a private hauler, we would have struck down the law just as we did in C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994). United Haulers accordingly turned on our decision to give paramount consideration to the public function in actively dealing in the trash market; if the Davises had their way, United Haulers would be overruled and the market participation doctrine would describe a null set (or maybe a set of one, see Reeves, supra). In each of these cases the commercial activities by the governments and their regulatory efforts complemented each other in some way, and in each of them the fact of tying the regulation to the public object of the foray into the market was understood to give the regulation a civic objective different from the discrimination traditionally held to be unlawful: in the paradigm of unconstitutional discrimination the law chills interstate activity by creating a commercial advantage for goods or services marketed by local private actors, not by governments and those they employ to fulfill their civic objectives, see, e.g., Fulton Corp., 516 U. S. 325 (higher tax on the stock of corporations with little or no presence in the State); New Energy Co. of Ind., 486 U. S. 269 (tax credit to sellers of ethanol available only for ethanol produced in the State); Bacchus Imports, Ltd., 468 U. S. 263 (tax exemption that applied only to sales of certain locally produced liquors); Lewis v. BT Investment Managers, Inc., 447 U. S. 27 (1980) (prohibition on out-of-state banks owning in-state businesses that provided investment advisory services); Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318 (1977) (higher tax on sale of securities by nonresidents if the securities were sold on an out-of-state, not an in-state, exchange). In sum, our cases on market regulation without market participation prescribe standard dormant Commerce Clause analysis; our cases on market participation joined with regulation (the usual situation) prescribe exceptional treatment for this direct governmental activity in commercial markets for the public’s benefit.[Footnote 16] The Kentucky tax scheme falls outside the forbidden paradigm because the Commonwealth’s direct participation favors, not local private entrepreneurs, but the Commonwealth and local governments. The Commonwealth enacted its tax code with an eye toward making some or all of its bonds more marketable. When it issues them for sale in the bond market, it relies on that tax code, and seller and purchaser treat the bonds and the tax rate as joined just as intimately, say, as the work force require- ments and city construction contracts were in Boston. Issuing bonds must therefore have the same significance under the dormant Commerce Clause as government trash processing, junk car disposal, or construction; and United Haulers, Alexandria Scrap, and White can be followed only by rejecting the Davises’ argument that Kentucky’s regulatory activity should be viewed in isolation as Commerce Clause discrimination.[Footnote 17] C A look at the specific markets in which the exemption’s effects are felt both confirms the conclusion that no traditionally forbidden discrimination is underway and points to the distinctive character of the tax policy. The market as most broadly conceived is one of issuers and holders of all fixed-income securities, whatever their source or ultimate destination. In this interstate market, Kentucky treats income from municipal bonds of other States just like income from bonds privately issued in Kentucky or elsewhere; no preference is given to any local issuer, and none to any local holder, beyond what is entailed in the preference Kentucky grants itself when it engages in activities serving public objectives. A more specialized market can be understood as commerce solely in federally tax-exempt municipal bonds, much of it conducted through interstate municipal bond funds.[Footnote 18] Here, of course, the distinction between the taxing State’s bonds and their holders and issuers and holders of out-of-state counterparts is at its most stark. But what is remarkable about the issuers in this and the broader interstate market is that nearly every taxing State believes its public interests are served by the same tax-and-exemption feature, which is supported in this Court by every one of the States (with or without an income tax) despite the ranges of relative wealth and tax rates among them. See Brief for 49 States as Amici Curiae. These facts suggest that no State perceives any local advantage or disadvantage beyond the permissible ones open to a government and to those who deal with it when that government itself enters the market. See supra, at 14–18. An equally significant perception emerges from examining the third type of market for municipal bonds: the one for bonds within the State of issue, a large proportion of which market in each State is managed by one or more single-state funds. By definition, there is no discrimination against interstate activity within the market itself, but one of its features reveals an important benefit of intrastate bond markets as they operate through these funds. The intrastate funds absorb securities issued by smaller or lesser known municipalities that the interstate markets tend to ignore. See National Federation Brief 15 (compared with single-state funds, “[n]ational mutual funds … are less likely to dedicate the time necessary to evaluate a small, obscure or infrequent municipal bond issuer or to purchase bonds issued by such public entities”); id., at 19 (“[N]ational mutual funds place a higher premium on the liquidity of their holdings than do single state funds, which are willing to purchase less liquid municipal bonds of smaller and less familiar issuers because of the state tax advantage and the fund’s mandate to purchase bonds issued within a specific state”). There is little doubt that many single-state funds would disappear if the current differential tax schemes were upset. See id., at 18 (“[O]ne predictable impact of the elimination of tax incentives for the purchase of municipal bonds issued in a specific state would be the disappearance, through consolidation into national mutual funds, of single state mutual funds”); ibid. (“Although a handful of single state funds might continue to exist for a small number of states (such as Florida) with high populations that have a high affinity for local bond issuers, the current state tax system is the raison d’ętre for virtually all single state funds, and they would cease to be financially viable in the absence of a tax advantage that outweighed their relative lack of diversification vis-À-vis national funds and their reduced asset base”); accord, Brief for Respondents 29 (the States’ tax exemptions “have fostered the growth of funds that hold only the municipal bonds of a single state,” which “[a]s compared [with] national tax-exempt bonds funds … tend to be higher risk and higher cost”); 11 Kiplinger’s Retirement Report, Win With Home-State Muni Bond Funds, p. 2 (Dec. 2004) (noting that in States without a differential taxation scheme, “there’s little incentive to create [single-state] muni bond funds”). Nor is there any suggestion that the interstate markets would discover some new reason to welcome the weaker municipal issues that would lose their local market homes after a victory for the Davises here. See National Federation Brief 18, 19 (“The main adverse impact of the disappearance of single state funds … would be felt by small municipal issuers” because they “would stand to lose much of the intrastate market for the bonds that has developed under the currently prevailing state tax system without gaining much of an interstate market from its elimination”). Financing for long-term municipal improvements would thus change radically if the differential tax feature disappeared.[Footnote 19] This probable indispensability of the current scheme to maintaining single-state markets serving smaller municipal borrowers not only underscores how far the States’ objectives probably lie from the forbidden protectionism for local business; it also tends to explain why the States are so committed to a taxing practice that much scholarship says often produces a net burden of tax revenues lost over interest expense saved. See, e.g., Brief for Alan D. Viard et al. as Amici Curiae 19 (“[S]tates routinely fail to recoup the cost of the tax subsidy in the form of lower financing rates” (citing Chalmers, Default Risk Cannot Explain the Muni Puzzle: Evidence from Municipal Bonds that are Secured by U. S. Treasury Obligations, 11 Rev. Financial Studies 281, 282–283 (1998))). In sum, the differential tax scheme is critical to the operation of an identifiable segment of the municipal financial market as it currently functions, and this fact alone demonstrates that the unanimous desire of the States to preserve the tax feature is a far cry from the private protectionism that has driven the development of the dormant Commerce Clause. It is also fatal to the Davises’ backup argument that this case should be remanded for analysis under the rule in Pike, 397 U. S. 137. IV Concluding that a state law does not amount to forbidden discrimination against interstate commerce is not the death knell of all dormant Commerce Clause challenges, for we generally leave the courtroom door open to plaintiffs invoking the rule in Pike, that even nondiscriminatory burdens on commerce may be struck down on a showing that those burdens clearly outweigh the benefits of a state or local practice. See id., at 142. The Kentucky courts made no Pike enquiry, and the Davises ask us to remand for one now, see Brief for Respondents 43. The Davises’ request for Pike balancing assumes an answer to an open question: whether Pike even applies to a case of this sort. United Haulers included a Pike analysis, see 550 U. S., at ___–___ (slip op., at 14–15) (plurality opinion), but our cases applying the market participant exception have not, see, e.g., White, 460 U. S. 204; Alexandria Scrap, 426 U. S. 794. We need not decide this question today, however, for Kentucky has not argued that Pike is irrelevant, see Reply Brief for Petitioners 2, n. 1, and even on the assumption that a Pike examination might generally be in order in this type of case, the current record and scholarly material convince us that the Judicial Branch is not institutionally suited to draw reliable conclusions of the kind that would be necessary for the Davises to satisfy a Pike burden in this particular case. The institutional difficulty is manifest in the very train of disadvantages that the Davises’ counsel attributes to the current differential tax scheme: “First, it harms out-of-state issuers (i.e., other States and their subdivisions) by blocking their access to investment dollars in Kentucky. Second, it similarly harms out-of-state private sellers (e.g., underwriters, individuals, and investment funds) who wish to sell their bonds in Kentucky. Third, it harms the national municipal bond market and its participants by distorting and impeding the free flow of capital. Fourth, it harms Kentucky investors by promoting risky, high-cost investment vehicles. Fifth, it harms the States by compelling them to enact competing discriminatory laws that decrease their net revenues.” Brief for Respondents 9. Even if each of these drawbacks does to some degree eventuate from the system, it must be apparent to anyone that weighing or quantifying them for a cost-benefit analysis would be a very subtle exercise. It is striking, after all, that most of the harms allegedly flowing directly or indirectly to Kentucky’s sister States and their citizens have failed to dissuade even a single State from supporting the current system; every one of them, including States with no income tax, have lined up with Kentucky in this case. The prospect for reliable Pike comparison dims even further when we turn to the benign function of the current system flagged a moment ago. Is any court in a position to evaluate the advantage of the current market for bonds issued by the smaller municipalities, the ones with no ready access to any other bond market than single-state funds? Consider that any attempt to place a definite value on this feature of the existing system would have to confront the what-if questions. If termination of the differential tax scheme jeopardized or eliminated most single-state funds (as the cited authorities predict) would some new source of capital take their place? Would the interstate markets accommodate the small issuers (as no cited authorities predict), or would the financing in question be replaced by current local taxation for long-term projects (unlikely, considering that financially weaker borrowers are involved), or would state governments assume responsibility through their own bonds or by state taxation? Or would capital to some degree simply dry up, eliminating a class of municipal improvements?[Footnote 20] And if some new source or sources of capital became available for these improvements in a given State, how likely is it that the new scheme would produce measurable net benefits to other States seeking capital, and how perceptibly would it produce a freer flow of funds? Money spent up front on increased local or state taxation is no more available for out-of-state investment than money invested in local bonds; sinking funds would be obviated, but what would the effect be on interstate capital flows? What is most significant about these cost-benefit questions is not even the difficulty of answering them or the inevitable uncertainty of the predictions that might be made in trying to come up with answers, but the unsuitability of the judicial process and judicial forums for making whatever predictions and reaching whatever answers are possible at all. See Tracy, 519 U. S., at 308 (“[T]he Court is institutionally unsuited to gather the facts upon which economic predictions can be made, and professionally untrained to make them”); cf. Fulton Corp., 516 U. S., at 342 (“ ‘[C]ourts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation. The complexities of factual economic proof always present a certain potential for error, and courts have little familiarity with the process of evaluating the relative economic burden of taxes’ ” (quoting Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 589–590 (1983))). While it is not our business to suggest that the current system be reconsidered, if it is to be placed in question a congressional forum has two advantages. Congress has some hope of acquiring more complete information than adversary trials may produce, and an elected legislature is the preferable institution for incurring the economic risks of any alteration in the way things have traditionally been done. And risk is the essence of what the Davises are urging here. It would miss the mark to think that the Kentucky courts, and ultimately this Court, are being invited merely to tinker with details of a tax scheme; we are being asked to apply a federal rule to throw out the system of financing municipal improvements throughout most of the United States, and the rule in Pike was never intended to authorize a court to expose the States to the uncertainties of the economic experimentation the Davises request. * * * The dissent rightly praises the virtues of the free market, and it warns that our decision to uphold Kentucky’s tax scheme will result in untoward consequences for that market. See, e.g., post, at 15. But the warning is alarmism; going back to 1919 the state regimes of differential bond taxation have been elements of the national commerce without wilting the Commerce Clause. The threat would come, instead, from the dissent’s approach, which to a certainty would upset the market in bonds and the settled expectations of their issuers based on the experience of nearly a century. We have been here before. Our predecessors on this Court responded to an earlier invitation to the adventurism of overturning a traditional local taxing practice. Justice Holmes answered that “the mode of taxation is of long standing, and upon questions of constitutional law the long settled habits of the community play a part … . [T]he fact that the system has been in force for a very long time is of itself a strong reason … for leaving any improvement that may be desired to the legislature.” Paddell v. City of New York, 211 U. S. 446, 448 (1908).[Footnote 21] The judgment of the Court of Appeals of Kentucky is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. * Justice Ginsburg joins all but Part III–B of this opinion. Footnote 1 Specifically, Kentucky defines “net income” for noncorporate taxpayers as “adjusted gross income,” minus certain deductions. See Ky. Rev. Stat. Ann. §141.010(11). “Adjusted gross income,” in turn, is defined as “gross income” minus other deductions spelled out in the Internal Revenue Code and elsewhere in the Kentucky statutes. See §141.010(10). Finally, “gross income” has the same meaning set out in §61 of the Internal Revenue Code. See §141.010(9); see also 26 U. S. C. §61. Footnote 2 “Municipal bond” is commonly defined as a “debt obligation of a state or local government entity.” J. Downes & J. Goodman, Dictionary of Finance and Investment Terms 439 (7th ed. 2006). We use that definition here; our references to “municipal bonds” thus include bonds issued by States and their political subdivisions. An argument raised by one of the Davises’ amici focuses on so-called “private-activity,” “industrial-revenue,” or “conduit” bonds, a subset of municipal bonds used to finance projects by private entities. These bonds are often (but not always) exempt under the Kentucky scheme. Amici contend that Kentucky’s exemption of these bonds, at the very least, plainly violates the Commerce Clause. See Brief for Alan D. Viard et al. as Amici Curiae 25–26. This argument, however, was not considered below, was never pressed by the Davises themselves, and is barely developed by amici. Moreover, we cannot tell with certainty what the consequences would be of holding that Kentucky violates the Commerce Clause by exempting such bonds; we must assume that it could disrupt important projects that the States have deemed to have public purposes. Accordingly, it is best to set this argument aside and leave for another day any claim that differential treatment of interest on private-activity bonds should be evaluated differently from the treatment of municipal bond interest generally. Footnote 3 There are some exceptions which derive from the federal exclusion, see 26 U. S. C. §103(b), but they do not matter here. Footnote 4 The amount of this benefit to municipal issuers can be approximated by comparing the interest rates on municipal bonds to those on Treasury bonds, which are also exempt from state taxation but are subject to federal taxation. “[A]t the end of 2006, the borrowing costs on AAA-rated, 10-year municipal bonds on average were 80.3 percent of comparable, but federally taxable, U. S. Treasury securities, [and] at the end of 2005 the borrowing costs on such municipal bonds were 88.4 percent of comparable U. S. Treasury bonds.” Brief for National Federation of Municipal Analysts as Amicus Curiae 8, n. 4. Footnote 5 The precise reduction in interest rates depends on the federal and state income tax rates, the credit rating of the issuer, the term of the bond, and market factors. See id., at 8. The reduction in interest rates is generally greater the higher are a State’s income tax rates. See id., at 9, and n. 6. Footnote 6 The Federal Government got in the game even earlier. Municipal bonds were exempted from “every federal income tax act enacted since passage of the Sixteenth Amendment” in 1913. Amdursky & Gillette §7.2.1, at 440. Footnote 7 This figure includes Kentucky and 36 other States that have schemes that are nearly identical to Kentucky’s. See Ala. Code §§40–18–4, 40–18–14(3)(f) (2003); Ariz. Rev. Stat. Ann. §43–1021(3) (West Supp. 2007); Ark. Code Ann. §26–51–404(b)(5) (Supp. 2007); Cal. Rev. & Tax. Code Ann. §17133 (West 2004); Colo. Rev. Stat. Ann. §39–22–104(3)(b) (2007); Conn. Gen. Stat. §12–701(a)(20)(A)(i) (2007); Del. Code Ann., Tit. 30, §1106(a)(1) (1997); Ga. Code Ann. §48–7–27(b)(1)(A) (2005); Haw. Rev. Stat. §§39–11, 47–13 (1994), 235–7(a)(6), (b)(2) (2001); Idaho Code §§63–3022M(1), (3)(b) (Lexis 2007); Kan. Stat. Ann. §79–32,117(b)(i) (2006 Cum. Supp.); La. Stat. Ann. §§47:48, 47:293(9)(a), (b) (West 2001 and Supp. 2008); Me. Rev. Stat. Ann., Tit. 36, §5122(1)(A) (Supp. 2007); Md. Tax-Gen. Code Ann. §10–204(b) (Lexis Supp. 2007); Mass. Gen. Laws, ch. 62, §2(a)(1)(A) (West 2006); Mich. Comp. Laws Ann. §206.30(1)(a) (West Supp. 2007); Minn. Stat. §290.01, subd. 19a(1)(i) (2006); Miss. Code Ann. §27–7–15(4)(d) (Supp. 2007); Mo. Rev. Stat. §143.121(2)(b) (2007 Supp.); Mont. Code Ann. §15–30–111(2)(a)(i) (2007); Neb. Rev. Stat. §77–2716(1)(c) (2007 Supp.); N. H. Rev. Stat. Ann. §77:4(I) (Supp. 2007); N. J. Stat. Ann. §54A:6–14 (West 2002); N. M. Stat. Ann. §§7–2–2(B)(3), (V) (2005); N. Y. Tax Law Ann. §612(b)(1) (West 2006); N. C. Gen. Stat. Ann. §§105–134.6(b)(1)(b), (c)(1) (Lexis 2005); N. D. Cent. Code Ann. §57–38–01.2(1)(g) (Lexis Supp. 2007); Ohio Rev. Code Ann. §5747.01(A)(1) (Lexis Supp. 2007); Ore. Rev. Stat. §316.680(2)(a) (2003); Pa. Stat. Ann., Tit. 72, §9901 (Purdon 2000); R. I. Gen. Laws §44–30–12(b)(1) (Supp. 2007); S. C. Code Ann. §12–6–1120(1) (2000); Tenn. Code Ann. §67–2–104(e)(1) (2006); Vt. Stat. Ann., Tit. 32, §5811(18)(A)(i)(II) (2007); Va. Code Ann. §§58.1–322(B)(1), (C)(2) (Lexis Supp. 2007); W. Va. Code Ann. §§11–21–12(b)(1), (c)(2) (Lexis Supp. 2007). It also includes four States that tax out-of-state municipal bonds and exempt some, but not all, in-state municipal bonds. See Iowa Code §422.7(36) (2005); Okla. Stat., Tit. 68, §§2358.5, 2358.5A (West 2007 Supp.); Wis. Stat. §71.05(1)(c) (2003–2004); compare Ill. Comp. Stat., ch. 35, §5/203(a)(2)(A) (West 2006) with ch. 45, §35/80(e). Of the remaining States, Utah exempts its own bonds, and extends reciprocal treatment to the bonds of States that do not tax Utah bonds, see Utah Code Ann. §§59–10–114(1)(g), (6) (Lexis 2007 Supp.); Indiana exempts all municipal bonds, see Ind. Code §6–3–1–3.5 (West 2004); and the balance have no personal income tax. Footnote 8 In so holding, we distinguished our decision in C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), which struck down a very similar ordinance on Commerce Clause grounds. The Carbone ordinance, however, benefited a private processing facility, and we found “this difference constitutionally significant” for the reasons adverted to in the main text. See United Haulers, 550 U. S., at ___ (slip op., at 1). Although the Carbone dissent argued that the private facility was “essentially a municipal facility,” 511 U. S., at 419 (opinion of Souter, J.), United Haulers relied on the apparent view of the Carbone majority that the facility was properly characterized as private, see 550 U. S., at ___–___ (slip op., at 7–8). Footnote 9 Justice Kennedy’s dissent (hereinafter dissent) says this is just circular rationalization, that the United Haulers acceptance of governmental preference in support of public health, safety, and welfare is the equivalent of justifying the law as an exercise of the “police power” and thus an exercise in “tautology,” since almost any state law could be so justified. See post, at 5. But this misunderstands what we said in United Haulers. The point of asking whether the challenged governmental preference operated to support a traditional public function was not to draw fine distinctions among governmental functions, but to find out whether the preference was for the benefit of a government fulfilling governmental obligations or for the benefit of private interests, favored because they were local. Under United Haulers, governmental public preference is constitutionally different from commercial private preference, and we make the governmental responsibility enquiry to identify the beneficiary as one or the other. See supra, at 9–10; United Haulers, supra, at ___ (slip op., at 11). Because this is the distinction at which the enquiry about traditional governmental activity is aimed, it entails neither tautology nor the hopeless effort to pick and choose among legitimate governmental activity that led to Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985). One of the two fundamental points of difference between the Court and the dissenters is their rejection of the constitutional distinction between public and private preference, see post, at 6, 10, 12; the dissenters thus carry on the battle that was fought in United Haulers. (The second fundamental difference goes to the realism and legitimacy of treating bond issuance and tax provisions as aggregated features of a single scheme of public finance. Compare infra, at 15–16, with post, at 6, 14.) Footnote 10 See, e.g., The Bond Buyer, Apr. 20, 2007, p. 31, col. 2 (describing bond issue by the Grayson County Public Hospital District Corporation). Footnote 11 See, e.g., id., June 20, 2007, p. 29, col. 3 (describing bond issue by Todd County for a “Detention Facility Project”). Footnote 12 See, e.g., id., Apr. 20, 2007, p. 31, cols. 2–3 (describing bond issue by the Johnson County School District Finance Corporation). Footnote 13 Contrary to the dissent, see post, at 11, we do not suggest that the only market at issue here is a discrete market for Kentucky bonds. In fact, we recognize that the relevant market can be conceived more broadly. See infra, at 20–21. Our point goes not to the contours of the market, but to the proper characterization of the various entities acting in the market. Footnote 14 The dissent overlooks this discussion when it claims that we contend Kentucky does not compete with other municipal bond issuers. See post, at 8. Footnote 15 The dissent does the same. See post, at 6, 14. Footnote 16 Significantly, our market participant cases are not limited to cases where the government supplies a uniquely public product. This much is manifest from Reeves, Inc. v. Stake, 447 U. S. 429 (1980). There is nothing remarkable or inherently governmental about the cement South Dakota produced, and yet we recognized that the State may engage in clear discrimination against out-of-state buyers that regular dormant Commerce Clause analysis would undoubtedly have held unconstitutional. Footnote 17 The dissent criticizes this analysis on the basis of our statement in Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 593 (1997), that “[a] tax exemption is not the sort of direct state involvement in the market that falls within the market-participation doctrine.” See post, at 14. This both misses the point and leaves the language from Camps Newfound shorn of context. In Camps Newfound, the tax exemption was unaccompanied by any market activity by the State; it favored only private charitable institutions. We correctly rejected the argument that a tax exemption without more constitutes market participation. But we had no occasion to consider the scheme here, where a State employs a tax exemption to facilitate its own participation in the market. As noted before, one of the dissent’s critical premises is the disaggregation of bond issuance and tax treatment, see post, at 6, 14; that strikes us as a denial of economic reality. The dissent also suggests that our reasoning conflicts with South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82 (1984), see post, at 14–15, but there is no conflict. In South-Central, Alaska conditioned the sale of state timber to private purchasers by requiring that the timber be processed within the State prior to export, and a plurality struck down the condition under the Commerce Clause. The case turned on the plurality’s conclusion that the processing requirement constituted a “restrictio[n] on dispositions subsequent to the goods coming to rest in private hands.” 467 U. S., at 98; see id., at 95 (“Under the Alaska requirement, … the choice is made for [the purchaser]: if he buys timber from the State he is not free to take the timber out of state prior to processing”). Kentucky imposes no such restrictions on the disposition of Kentucky bonds; bond holders are free to sell the bonds to whomever they please. Thus, the type of “downstream regulation” that South-Central found objectionable is simply not present here. Id., at 99. We note also that South-Central expressly applied “more rigorous” Commerce Clause scrutiny because the case involved “foreign commerce” and restrictions on the resale of “a natural resource.” Id., at 100, 96. Neither of those elements appears here. Footnote 18 See Brief for National Federation of Municipal Analysts as Amicus Curiae 11 (hereinafter National Federation Brief) (“In 2006, tax-exempt mutual funds held approximately $365 billion in long-term [municipal] bonds, of which approximately $155 billion were held in 481 single-state funds and approximately $210 billion in 230 national funds … [and as of March 2007,] approximately $254 billion [in short-term municipal bonds] were held in national tax-exempt money market funds and approximately $125 billion in single state tax-exempt money market funds” (citing Investment Company Institute, 2007 Investment Company Fact Book 96, 98; Lipper Analytical Services, Tax-Exempt Fixed Income Fund Performance Analysis, 1st Quarter 2007 Report)); National Federation Brief 12 (“[A]pproximately 58% of … long-term municipal bonds [owned by mutual funds] and approximately 67% of … short-term municipal securities were purchased without regard to a match between the state of the bond issuer and the state of the fund’s shareholders”). Footnote 19 The Davises themselves, in their opposition to the petition, explain that if the tax exemptions are removed, “states will open their investment sales to the entire national market for debt instruments.” Brief in Opposition 10–11. As a result, the Davises say, “[o]nce states compete in the financial markets without the protective benefit of coercive tax schemes, they will have to be more selective in what projects they choose to fund… . [T]he market will provide incentives for governments to be more careful in selecting and funding projects through bond sales.” Id., at 11, n. 5. Footnote 20 History bears out the concern that poorer places may have a harder time taking on at least some types of local investments. See Goldin & Katz, The Shaping of Higher Education: The Formative Years in the United States, 1890 to 1940, 13 J. Econ. Perspectives 37, 50–55 (Winter 1999) (per capita spending on public universities depended on local wealth); Goldin, America’s Graduation from High School: The Evolution and Spread of Secondary Schooling in the Twentieth Century, 58 J. Econ. Hist. 345, 369–372 (1998) (likewise for public high schools). Footnote 21 The dissent thinks the need to preserve existing financing practices is the true “controlling rationale” of our holding, post, at 15, but not acknowledged as such. As Justice Holmes’s opinion shows, practical consequences have always been relevant in deciding the constitutionality of local tax laws. The practical considerations discussed here support the traditional distinction between permissible public preferences and the forbidden discriminations for the benefit of local private interests.
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554.US.570
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District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53. (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22. (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28. (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30. (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32. (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47. (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54. 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56. 3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64. 478 F. 3d 370, affirmed. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
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We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution. I The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D. C. Code §§7–2501.01(12), 7–2502.01(a), 7–2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§22–4504(a), 22–4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. See §7–2507.02.[Footnote 1] Respondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the Federal Judicial Center. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” App. 59a. The District Court dismissed respondent’s complaint, see Parker v. District of Columbia, 311 F. Supp. 2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense,[Footnote 2] reversed, see Parker v. District of Columbia, 478 F. 3d 370, 401 (2007). It held that the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. See id., at 395, 399–401. The Court of Appeals directed the District Court to enter summary judgment for respondent. We granted certiorari. 552 U. S. ___ (2007). II We turn first to the meaning of the Second Amendment. A The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation. The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11–12; post, at 1 (Stevens, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2–4. The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998). Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).[Footnote 3] “ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.[Footnote 4] 1. Operative Clause. a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.[Footnote 5] Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.[Footnote 6] What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990): “ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans. b. “Keep and bear Arms.” We move now from the holder of the right—“the people”—to the substance of the right: “to keep and bear Arms.” Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added). Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist … shall or may have or keep in his House … any Arms … ”); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militia-related connotation. See Brief for Petitioners 16–17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.[Footnote 7] At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.” [Footnote 8] It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus the right of self-defence [is] guaranteed by the [Ohio] constitution”); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.[Footnote 9] These provisions demonstrate—again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” See Linguists’ Brief 18; post, at 11 (Stevens, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶28, used the phrase: “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country … .”) Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. See Linguists’ Brief 18–23. Without the preposition, “bear arms” normally meant (as it continues to mean today) what Justice Ginsburg’s opinion in Muscarello said. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque. Petitioners justify their limitation of “bear arms” to the military context by pointing out the unremarkable fact that it was often used in that context—the same mistake they made with respect to “keep arms.” It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners’ inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. And the phrases used primarily in those military discussions include not only “bear arms” but also “carry arms,” “possess arms,” and “have arms”—though no one thinks that those other phrases also had special military meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 Tex. L. Rev. 237, 261 (2004). The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant. See, e.g., 30 Journals of Continental Congress 349–351 (J. Fitzpatrick ed. 1934). Other legal sources frequently used “bear arms” in nonmilitary contexts.[Footnote 10] Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (“Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms”). And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J. L. & Pub. Pol’y (forthcoming Sept. 2008), online at http://papers.ssrn.com/abstract=1086176 (as visited June 24, 2008, and available in Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear arms” from the founding period). Justice Stevens points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post, at 12–13, n. 9; Linguists’ Brief 24. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is irrelevant. The amici also dismiss examples such as “ ‘bear arms … for the purpose of killing game’ ” because those uses are “expressly qualified.” Linguists’ Brief 24. (Justice Stevens uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.[Footnote 11] Justice Stevens places great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C. Bickford eds. 1991) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second Amendment intended “bear Arms” to refer only to military service. See post, at 26. It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.[Footnote 12] In any case, what Justice Stevens would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense … must sometimes have been almost overwhelming.” P. Brock, Pacifism in the United States 359 (1968); see M. Hirst, The Quakers in Peace and War 336–339 (1923); 3 T. Clarkson, Portraiture of Quakerism 103–104 (3d ed. 1807). The Pennsylvania Militia Act of 1757 exempted from service those “scrupling the use of arms”—a phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H. Flanders eds. 1898) (emphasis added). Thus, the most natural interpretation of Madison’s deleted text is that those opposed to carrying weapons for potential violent confrontation would not be “compelled to render military service,” in which such carrying would be required.[Footnote 13] Finally, Justice Stevens suggests that “keep and bear Arms” was some sort of term of art, presumably akin to “hue and cry” or “cease and desist.” (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of “keep arms.”) Justice Stevens believes that the unitary meaning of “keep and bear Arms” is established by the Second Amendment’s calling it a “right” (singular) rather than “rights” (plural). See post, at 16. There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular “right,” and the First Amendment protects the “right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.” See, e.g., Pa. Declaration of Rights §§IX, XII, XVI, in 5 Thorpe 3083–3084; Ohio Const., Arts. VIII, §§11, 19 (1802), in id., at 2910–2911.[Footnote 14] And even if “keep and bear Arms” were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens (not militia members) as “a violation of the constitutional right of Protestant subjects to keep and bear arms for their own defense.” 49 The London Magazine or Gentleman’s Monthly Intelligencer 467 (1780). In response, another member of Parliament referred to “the right of bearing arms for personal defence,” making clear that no special military meaning for “keep and bear arms” was intended in the discussion. Id., at 467–468.[Footnote 15] c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed … .”[Footnote 16] Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31–53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic James II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103–106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.” 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689). This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States §1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of parliament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979). By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence. And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833). There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause. 2. Prefatory Clause. The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State … .” a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e.g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades … and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“[T]he militia of the State, that is to say, of every man in it able to bear arms”). Petitioners take a seemingly narrower view of the militia, stating that “[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses (art. I, §8, cls. 15–16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise … Armies”; “to provide … a Navy,” Art. I, §8, cls. 12–13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the militia,” §8, cl. 15; and the power not to create, but to “organiz[e]” it—and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them. Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121–122; cf. Va. Declaration of Rights §13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”). b. “Security of a Free State.” The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.” 1 Story §208; see also 3 id., §1890 (in reference to the Second Amendment’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “ ‘free country’ ” or free polity. See Volokh, “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States—“each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution. There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. 3. Relationship between Prefatory Clause and Operative Clause We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights. The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself. Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee—it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.[Footnote 17] That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation. B Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment. Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of them—Pennsylvania and Vermont—clearly adopted individual rights unconnected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves, and the state … .” §XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See Vt. Const., ch. 1, §15, in 6 id., at 3741. North Carolina also codified a right to bear arms in 1776: “That the people have a right to bear arms, for the defence of the State … .” Declaration of Rights §XVII, in id., at 2787, 2788. This could plausibly be read to support only a right to bear arms in a militia—but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. See §§14, 18, 35, in 5 id., 2789, 2791, 2793. Many colonial statutes required individual arms-bearing for public-safety reasons—such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.” 19 Colonial Records of the State of Georgia 137–139 (A. Candler ed. 1911 (pt. 2)) (emphasis added). That broad public-safety understanding was the connotation given to the North Carolina right by that State’s Supreme Court in 1843. See State v. Huntly, 3 Ired. 418, 422–423. The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence… .” Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow meaning to the phrase “common defence” this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the State’s highest court thought otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” Commonwealth v. Blanding, 20 Mass. 304, 313–314. The analogy makes no sense if firearms could not be used for any individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-century courts never read “common defence” to limit the use of weapons to militia service). We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions—although in Virginia a Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].”[Footnote 18] 1 The Papers of Thomas Jefferson 344 (J. Boyd ed. 1950)). Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833). The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause. C Justice Stevens relies on the drafting history of the Second Amendment—the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record. It is true, as Justice Stevens says, that there was concern that the Federal Government would abolish the institution of the state militia. See post, at 20. That concern found expression, however, not in the various Second Amendment precursors proposed in the State conventions, but in separate structural provisions that would have given the States concurrent and seemingly nonpre-emptible authority to organize, discipline, and arm the militia when the Federal Government failed to do so. See Veit 17, 20 (Virginia proposal); 4 J. Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 244, 245 (2d ed. 1836) (reprinted 1941) (North Carolina proposal); see also 2 Documentary Hist. 624 (Pennsylvania minority’s proposal). The Second Amendment precursors, by contrast, referred to the individual English right already codified in two (and probably four) State constitutions. The Federalist-dominated first Congress chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed militia amendments. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists’ view, unnecessary) individual-rights amendments. The Second Amendment right, protecting only individuals’ liberty to keep and carry arms, did nothing to assuage Antifederalists’ concerns about federal control of the militia. See, e.g., Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712. Justice Stevens thinks it significant that the Virginia, New York, and North Carolina Second Amendment proposals were “embedded … within a group of principles that are distinctly military in meaning,” such as statements about the danger of standing armies. Post, at 22. But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right. See 2 Documentary Hist. 624. Other than that erroneous point, Justice Stevens has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia. By contrast, New Hampshire’s proposal, the Pennsylvania minority’s proposal, and Samuel Adams’ proposal in Massachusetts unequivocally referred to individual rights, as did two state constitutional provisions at the time. See Veit 16, 17 (New Hampshire proposal); 6 Documentary Hist. 1452, 1453 (J. Kaminski & G. Saladino eds. 2000) (Samuel Adams’ proposal). Justice Stevens’ view thus relies on the proposition, unsupported by any evidence, that different people of the founding period had vastly different conceptions of the right to keep and bear arms. That simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties. D We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. Before proceeding, however, we take issue with Justice Stevens’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task. See post, at 27, n. 28. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. Ibid. “Postenactment legislative history,” ibid., a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do. 1. Post-ratification Commentary Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service. St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty … . The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” 1 id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” Ibid; see also 2 id., at 143, and nn. 40 and 41. He later grouped the right with some of the individual rights included in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, it would “be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused … .” 1 id., at App. 357. It is unlikely that Tucker was referring to a person’s being “accused” of violating a law making it a crime to bear arms in a state militia.[Footnote 19] In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows: “The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent… . “The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed. “The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121–122.[Footnote 20] Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. See id., 122–123. Rawle clearly differentiated between the people’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war.” Id., at 140. Rawle further said that the Second Amendment right ought not “be abused to the disturbance of the public peace,” such as by assembling with other armed individuals “for an unlawful purpose”—statements that make no sense if the right does not extend to any individual purpose. Joseph Story published his famous Commentaries on the Constitution of the United States in 1833. Justice Stevens suggests that “[t]here is not so much as a whisper” in Story’s explanation of the Second Amendment that favors the individual-rights view. Post, at 34. That is wrong. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had nothing to do with militia service. 3 Story §1858. He then equated the English right with the Second Amendment: “§1891. A similar provision [to the Second Amendment] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.’ But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” (Footnotes omitted.) This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recognized 38 years after Story wrote his Commentaries, “[t]he passage from Story, shows clearly that this right was intended … and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Andrews v. State, 50 Tenn. 165, 183 (1871). Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. See 3 Story §1890, n. 2; §1891, n. 3. In addition, in a shorter 1840 work Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” A Familiar Exposition of the Constitution of the United States §450 (reprinted in 1986). Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.” A Treatise on the Unconstitutionality of American Slavery 117–118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”). In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed: “The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that ‘the right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” The Crime Against Kansas, May 19–20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606–607 (2006). We have found only one early 19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia—and he recognized that the prevailing view was to the contrary. “The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.” B. Oliver, The Rights of an American Citizen 177 (1832). 2. Pre-Civil War Case Law The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In Houston v. Moore, 5 Wheat. 1, 24 (1820), this Court held that States have concurrent power over the militia, at least where not pre-empted by Congress. Agreeing in dissent that States could “organize, discipline, and arm” the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id., at 51–53. Of course, if the Amendment simply “protect[ed] the right of the people of each of the several States to maintain a well-regulated militia,” post, at 1 (Stevens, J., dissenting), it would have enormous and obvious bearing on the point. But the Court and Story derived the States’ power over the militia from the nonexclusive nature of federal power, not from the Second Amendment, whose preamble merely “confirms and illustrates” the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a circuit judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.” Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia.[Footnote 21] See also Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever. In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right: “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!” Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment. Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to “protect[ion of] the public liberty” and “keep[ing] in awe those in power,” id., at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt—but it is not petitioners’ reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “of all the free citizens of the State to keep and bear arms for their defence,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.” Andrews, 50 Tenn., at 178; see also ibid. (equating state provision with Second Amendment). 3. Post-Civil War Legislation. In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866–1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive. Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities… . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried: “in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.” Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton). The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.” Halbrook 19. Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14 stated: “[T]he right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery… . ” 14 Stat. 176–177. The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis). Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty … under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. 4. Post-Civil War Commentators. Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said: “Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms… . The alternative to a standing army is ‘a well-regulated militia,’ but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.” Id., at 350. That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms, is made even clearer in his 1880 work, General Principles of Constitutional Law. The Second Amendment, he said, “was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people.” Id., at 270. In a section entitled “The Right in General,” he continued: “It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.” Id., at 271. All other post-Civil War 19th-century sources we have found concurred with Cooley. One example from each decade will convey the general flavor: “[The purpose of the Second Amendment is] to secure a well-armed militia… . But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms… . The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected.” J. Pomeroy, An Introduction to the Constitutional Law of the United States 152–153 (1868) (hereinafter Pomeroy). “As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873) (hereinafter Kent). “Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or duties involve peculiar peril may keep a pistol for prudent self-defence.” B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott). “The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. … [I]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.” J. Ordronaux, Constitutional Legislation in the United States 241–242 (1891). E We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment. United States v. Cruikshank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment … means no more than that it shall not be infringed by Congress.” 92 U. S., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’ ”[Footnote 22] and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.[Footnote 23] Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264–265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups. Justice Stevens presses Presser into service to support his view that the right to bear arms is limited to service in the militia by joining Presser’s brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for Justice Stevens’ argument, that later portion deals with the Fourteenth Amendment; it was the Fourteenth Amendment to which the plaintiff’s nonmembership in the militia was relevant. Thus, Justice Stevens’ statement that Presser “suggested that… nothing in the Constitution protected the use of arms outside the context of a militia,” post, at 40, is simply wrong. Presser said nothing about the Second Amendment’s meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations. Justice Stevens places overwhelming reliance upon this Court’s decision in United States v. Miller, 307 U. S. 174 (1939). “[H]undreds of judges,” we are told, “have relied on the view of the amendment we endorsed there,” post, at 2, and “[e]ven if the textual and historical arguments on both side of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself … would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 4. And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 2. Nothing so clearly demonstrates the weakness of Justice Stevens’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right. This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did “not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 42–43, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. Justice Stevens claims, post, at 42, that the opinion reached its conclusion “[a]fter reviewing many of the same sources that are discussed at greater length by the Court today.” Not many, which was not entirely the Court’s fault. The respondent made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court’s consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3 N. Y. U. J. L. & Liberty 48, 65–68 (2008). The Government’s brief spent two pages discussing English legal sources, concluding “that at least the carrying of weapons without lawful occasion or excuse was always a crime” and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) “the early English law did not guarantee an unrestricted right to bear arms.” Brief for United States, O. T. 1938, No. 696, at 9–11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12–18. The final section of the brief recognized that “some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property,” and launched an alternative argument that “weapons which are commonly used by criminals,” such as sawed-off shotguns, are not protected. See id., at 18–21. The Government’s Miller brief thus provided scant discussion of the history of the Second Amendment—and the Court was presented with no counterdiscussion. As for the text of the Court’s opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178–182. Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.[Footnote 24] We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.[Footnote 25] We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). It is demonstrably not true that, as Justice Stevens claims, post, at 41–42, “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself. III Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[Footnote 26] We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. IV We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable. As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[Footnote 27] banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster. Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”). It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56–57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel … , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D. C. Code §7–2507.02. The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A. 2d 744, 755–756 (1978).[Footnote 28] Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement “in such a manner as to forbid the carrying of a firearm within one’s home or possessed land without a license.” App. 59a. The Court of Appeals did not invalidate the licensing requirement, but held only that the District “may not prevent [a handgun] from being moved throughout one’s house.” 478 F. 3d, at 400. It then ordered the District Court to enter summary judgment “consistent with [respondent’s] prayer for relief.” Id., at 401. Before this Court petitioners have stated that “if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,” by which they apparently mean if he is not a felon and is not insane. Brief for Petitioners 58. Respondent conceded at oral argument that he does not “have a problem with … licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement. Justice Breyer has devoted most of his separate dissent to the handgun ban. He says that, even assuming the Second Amendment is a personal guarantee of the right to bear arms, the District’s prohibition is valid. He first tries to establish this by founding-era historical precedent, pointing to various restrictive laws in the colonial period. These demonstrate, in his view, that the District’s law “imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.” Post, at 2. Of the laws he cites, only one offers even marginal support for his assertion. A 1783 Massachusetts law forbade the residents of Boston to “take into” or “receive into” “any Dwelling House, Stable, Barn, Out-house, Ware-house, Store, Shop or other Building” loaded firearms, and permitted the seizure of any loaded firearms that “shall be found” there. Act of Mar. 1, 1783, ch. 13, 1783 Mass. Acts p. 218. That statute’s text and its prologue, which makes clear that the purpose of the prohibition was to eliminate the danger to firefighters posed by the “depositing of loaded Arms” in buildings, give reason to doubt that colonial Boston authorities would have enforced that general prohibition against someone who temporarily loaded a firearm to confront an intruder (despite the law’s application in that case). In any case, we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home. The other laws Justice Breyer cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at 6–7. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents. Justice Breyer points to other founding-era laws that he says “restricted the firing of guns within the city limits to at least some degree” in Boston, Philadelphia and New York. Post, at 4 (citing Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007)). Those laws provide no support for the severe restriction in the present case. The New York law levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year’s Eve and the first two days of January, and was aimed at preventing the “great Damages … frequently done on [those days] by persons going House to House, with Guns and other Firearms and being often intoxicated with Liquor.” 5 Colonial Laws of New York 244–246 (1894). It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans. The Pennsylvania law to which Justice Breyer refers levied a fine of 5 shillings on one who fired a gun or set off fireworks in Philadelphia without first obtaining a license from the governor. See Act of Aug. 26, 1721, §4, in 3 Stat. at Large 253–254. Given Justice Wilson’s explanation that the right to self-defense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any event amounted to at most a licensing regime) would have been enforced against a person who used firearms for self-defense. Justice Breyer cites a Rhode Island law that simply levied a 5-shilling fine on those who fired guns in streets and taverns, a law obviously inapplicable to this case. See An Act for preventing Mischief being done in the town of Newport, or in any other town in this Government, 1731, Rhode Island Session Laws. Finally, Justice Breyer points to a Massachusetts law similar to the Pennsylvania law, prohibiting “discharg[ing] any Gun or Pistol charged with Shot or Ball in the Town of Boston.” Act of May 28, 1746, ch. X, Acts and Laws of Mass. Bay 208. It is again implausible that this would have been enforced against a citizen acting in self-defense, particularly given its preambulatory reference to “the indiscreet firing of Guns.” Ibid. (preamble) (emphasis added). A broader point about the laws that Justice Breyer cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties.[Footnote 29] They are akin to modern penalties for minor public-safety infractions like speeding or jaywalking. And although such public-safety laws may not contain exceptions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a “Do Not Walk” sign in order to flee an attacker, or that the Government would enforce those laws under such circumstances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. See D. C. Code §7–2507.06. Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us. In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. * * * We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct. We affirm the judgment of the Court of Appeals. It is so ordered. Footnote 1 There are minor exceptions to all of these prohibitions, none of which is relevant here. Footnote 2 That construction has not been challenged here. Footnote 3 As Sutherland explains, the key 18th-century English case on the effect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep. 404 (1716), stated that “the preamble could not be used to restrict the effect of the words of the purview.” J. Sutherland, Statutes and Statutory Construction, 47.04 (N. Singer ed. 5th ed. 1992). This rule was modified in England in an 1826 case to give more importance to the preamble, but in America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.” Ibid. Justice Stevens says that we violate the general rule that every clause in a statute must have effect. Post, at 8. But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues. Footnote 4 Justice Stevens criticizes us for discussing the prologue last. Post, at 8. But if a prologue can be used only to clarify an ambiguous operative provision, surely the first step must be to determine whether the operative provision is ambiguous. It might be argued, we suppose, that the prologue itself should be one of the factors that go into the determination of whether the operative provision is ambiguous—but that would cause the prologue to be used to produce ambiguity rather than just to resolve it. In any event, even if we considered the prologue along with the operative provision we would reach the same result we do today, since (as we explain) our interpretation of “the right of the people to keep and bear arms” furthers the purpose of an effective militia no less than (indeed, more than) the dissent’s interpretation. See infra, at 26–27. Footnote 5 Justice Stevens is of course correct, post, at 10, that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And Justice Stevens is dead wrong to think that the right to petition is “primarily collective in nature.” Ibid. See McDonald v. Smith, 472 U. S. 479, 482–484 (1985) (describing historical origins of right to petition). Footnote 6 If we look to other founding-era documents, we find that some state constitutions used the term “the people” to refer to the people collectively, in contrast to “citizen,” which was used to invoke individual rights. See Heyman, Natural Rights and the Second Amendment, in The Second Amendment in Law and History 179, 193–195 (C. Bogus ed. 2000) (hereinafter Bogus). But that usage was not remotely uniform. See, e.g., N. C. Declaration of Rights §XIV (1776), in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 2787, 2788 (F. Thorpe ed. 1909) (hereinafter Thorpe) (jury trial); Md. Declaration of Rights §XVIII (1776), in 3 id., at 1686, 1688 (vicinage requirement); Vt. Declaration of Rights ch. 1, §XI (1777), in 6 id., at 3737, 3741 (searches and seizures); Pa. Declaration of Rights §XII (1776), in 5 id., at 3081, 3083 (free speech). And, most importantly, it was clearly not the terminology used in the Federal Constitution, given the First, Fourth, and Ninth Amendments. Footnote 7 See, e.g., 3 A Compleat Collection of State-Tryals 185 (1719) (“Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?”); T. Wood, A New Institute of the Imperial or Civil Law 282 (1730) (“Those are guilty of publick Force, who keep Arms in their Houses, and make use of them otherwise than upon Journeys or Hunting, or for Sale …”); A Collection of All the Acts of Assembly, Now in Force, in the Colony of Virginia 596 (1733) (“Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping Arms, &c.”); J. Ayliffe, A New Pandect of Roman Civil Law 195 (1734) (“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance”); J. Trusler, A Concise View of the Common Law and Statute Law of England 270 (1781) (“if [papists] keep arms in their houses, such arms may be seized by a justice of the peace”); Some Considerations on the Game Laws 54 (1796) (“Who has been deprived by [the law] of keeping arms for his own defence? What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of it, from mounting his Gun on his Chimney Piece … ?”); 3 B. Wilson, The Works of the Honourable James Wilson 84 (1804) (with reference to state constitutional right: “This is one of our many renewals of the Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms for the preservation of the kingdom, and of their own person’ ”); W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833) (with reference to colonists’ English rights: “The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation”); 3 R. Burn, Justice of the Peace and the Parish Officer 88 (1815) (“It is, however, laid down by Serjeant Hawkins, … that if a lessee, after the end of the term, keep arms in his house to oppose the entry of the lessor, …”); State v. Dempsey, 31 N. C. 384, 385 (1849) (citing 1840 state law making it a misdemeanor for a member of certain racial groups “to carry about his person or keep in his house any shot gun or other arms”). Footnote 8 See Pa. Declaration of Rights §XIII, in 5 Thorpe 3083 (“That the people have a right to bear arms for the defence of themselves and the state… ”); Vt. Declaration of Rights §XV, in 6 id., at 3741 (“That the people have a right to bear arms for the defence of themselves and the State…”); Ky. Const., Art. XII, cl. 23 (1792), in 3 id., at 1264, 1275 (“That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”); Ohio Const., Art. VIII, §20 (1802), in 5 id., at 2901, 2911 (“That the people have a right to bear arms for the defence of themselves and the State … ”); Ind. Const., Art. I, §20 (1816), in 2 id., at 1057, 1059 (“That the people have a right to bear arms for the defense of themselves and the State… ”); Miss. Const., Art. I, §23 (1817), in 4 id., at 2032, 2034 (“Every citizen has a right to bear arms, in defence of himself and the State”); Conn. Const., Art. I, §17 (1818), in 1 id., at 536, 538 (“Every citizen has a right to bear arms in defence of himself and the state”); Ala. Const., Art. I, §23 (1819), in 1 id., at 96, 98 (“Every citizen has a right to bear arms in defence of himself and the State”); Mo. Const., Art. XIII, §3 (1820), in 4 id., at 2150, 2163 (“[T]hat their right to bear arms in defence of themselves and of the State cannot be questioned”). See generally Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006). Footnote 9 See Bliss v. Commonwealth, 2 Litt. 90, 91–92 (Ky. 1822); State v. Reid, 1 Ala. 612, 616–617 (1840); State v. Schoultz, 25 Mo. 128, 155 (1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (interpreting similar provision with “common defence” purpose); State v. Huntly, 25 N. C. 418, 422–423 (1843) (same); cf. Nunn v. State, 1 Ga. 243, 250–251 (1846) (construing Second Amendment); State v. Chandler, 5 La. Ann. 489, 489–490 (1850) (same). Footnote 10 See J. Brydall, Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (“In the 21st Year of King Edward the Third, a Proclamation Issued, that no Person should bear any Arms within London, and the Suburbs”); J. Bond, A Compleat Guide to Justices of the Peace 43 (1707) (“Sheriffs, and all other Officers in executing their Offices, and all other persons pursuing Hu[e] and Cry may lawfully bear arms”); 1 An Abridgment of the Public Statutes in Force and Use Relative to Scotland (1755) (entry for “Arms”: “And if any person above described shall have in his custody, use, or bear arms, being thereof convicted before one justice of peace, or other judge competent, summarily, he shall for the first offense forfeit all such arms” (quoting 1 Geo. 1, c. 54, §1)); Statute Law of Scotland Abridged 132–133 (2d ed. 1769) (“Acts for disarming the highlands” but “exempting those who have particular licenses to bear arms”); E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”); E. Roche, Proceedings of a Court-Martial, Held at the Council-Chamber, in the City of Cork 3 (1798) (charge VI: “With having held traitorous conferences, and with having conspired, with the like intent, for the purpose of attacking and despoiling of the arms of several of the King’s subjects, qualified by law to bear arms”); C. Humphreys, A Compendium of the Common Law in force in Kentucky 482 (1822) (“[I]n this country the constitution guaranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify people unnecessarily”). Footnote 11 Justice Stevens contends, post, at 15, that since we assert that adding “against” to “bear arms” gives it a military meaning we must concede that adding a purposive qualifying phrase to “bear arms” can alter its meaning. But the difference is that we do not maintain that “against” alters the meaning of “bear arms” but merely that it clarifies which of various meanings (one of which is military) is intended. Justice Stevens, however, argues that “[t]he term ‘bear arms’ is a familiar idiom; when used unadorned by any additional words, its meaning is ‘to serve as a soldier, do military service, fight.’ ” Post, at 11. He therefore must establish that adding a contradictory purposive phrase can alter a word’s meaning. Footnote 12 Justice Stevens finds support for his legislative history inference from the recorded views of one Antifederalist member of the House. Post, at 26 n. 25. “The claim that the best or most representative reading of the [language of the] amendments would conform to the understanding and concerns of [the Antifederalists] is … highly problematic.” Rakove, The Second Amendment: The Highest Stage of Originalism, Bogus 74, 81. Footnote 13 The same applies to the conscientious-objector amendments proposed by Virginia and North Carolina, which said: “That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.” See Veit 19; 4 J. Eliot, The Debates in the Several State Constitutions on the Adoption of the Federal Constitution 243, 244 (2d ed. 1836) (reprinted 1941). Certainly their second use of the phrase (“bear arms in his stead”) refers, by reason of context, to compulsory bearing of arms for military duty. But their first use of the phrase (“any person religiously scrupulous of bearing arms”) assuredly did not refer to people whose God allowed them to bear arms for defense of themselves but not for defense of their country. Footnote 14 Faced with this clear historical usage, Justice Stevens resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established. Post, at 16, n. 13. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution of the United States” is not a whit different from a promise “to support and defend the Constitution of the United States.” Footnote 15 Cf. 3 Geo., 34, §3, in 7 Eng. Stat. at Large 126 (1748) (“That the Prohibition contained … in this Act, of having, keeping, bearing, or wearing any Arms or Warlike Weapons … shall not extend … to any Officers or their Assistants, employed in the Execution of Justice …”). Footnote 16 Contrary to Justice Stevens’ wholly unsupported assertion, post, at 17, there was no pre-existing right in English law “to use weapons for certain military purposes” or to use arms in an organized militia. Footnote 17 Article I, §8, cl. 16 of the Constitution gives Congress the power “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” It could not be clearer that Congress’s “organizing” power, unlike its “governing” power, can be invoked even for that part of the militia not “employed in the Service of the United States.” Justice Stevens provides no support whatever for his contrary view, see post, at 19 n. 20. Both the Federalists and Anti-Federalists read the provision as it was written, to permit the creation of a “select” militia. See The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961); Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712. Footnote 18 Justice Stevens says that the drafters of the Virginia Declaration of Rights rejected this proposal and adopted “instead” a provision written by George Mason stressing the importance of the militia. See post, at 24, and n. 24. There is no evidence that the drafters regarded the Mason proposal as a substitute for the Jefferson proposal. Footnote 19 Justice Stevens quotes some of Tucker’s unpublished notes, which he claims show that Tucker had ambiguous views about the Second Amendment. See post, at 31, and n. 32. But it is clear from the notes that Tucker located the power of States to arm their militias in the Tenth Amendment, and that he cited the Second Amendment for the proposition that such armament could not run afoul of any power of the federal government (since the amendment prohibits Congress from ordering disarmament). Nothing in the passage implies that the Second Amendment pertains only to the carrying of arms in the organized militia. Footnote 20 Rawle, writing before our decision in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), believed that the Second Amendment could be applied against the States. Such a belief would of course be nonsensical on petitioners’ view that it protected only a right to possess and carry arms when conscripted by the State itself into militia service. Footnote 21 Justice Stevens suggests that this is not obvious because free blacks in Virginia had been required to muster without arms. See post, at 28, n. 29 (citing Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 497 (1998)). But that could not have been the type of law referred to in Aldridge, because that practice had stopped 30 years earlier when blacks were excluded entirely from the militia by the First Militia Act. See Siegel, supra, at 498, n. 120. Justice Stevens further suggests that laws barring blacks from militia service could have been said to violate the “right to bear arms.” But under Justice Stevens’ reading of the Second Amendment (we think), the protected right is the right to carry arms to the extent one is enrolled in the militia, not the right to be in the militia. Perhaps Justice Stevens really does adopt the full-blown idiomatic meaning of “bear arms,” in which case every man and woman in this country has a right “to be a soldier” or even “to wage war.” In any case, it is clear to us that Aldridge’s allusion to the existing Virginia “restriction” upon the right of free blacks “to bear arms” could only have referred to “laws prohibiting blacks from keeping weapons,” Siegel, supra, at 497–498. Footnote 22 Justice Stevens’ accusation that this is “not accurate,” post, at 39, is wrong. It is true it was the indictment that described the right as “bearing arms for a lawful purpose.” But, in explicit reference to the right described in the indictment, the Court stated that “The second amendment declares that it [i.e., the right of bearing arms for a lawful purpose] shall not be infringed.” 92 U. S., at 553. Footnote 23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government. Footnote 24 As for the “hundreds of judges,” post, at 2, who have relied on the view of the Second Amendment Justice Stevens claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right. Footnote 25 Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller … (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued. Footnote 26 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive. Footnote 27 Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments…”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect. Footnote 28 McIntosh upheld the law against a claim that it violated the Equal Protection Clause by arbitrarily distinguishing between residences and businesses. See 395 A. 2d, at 755. One of the rational bases listed for that distinction was the legislative finding “that for each intruder stopped by a firearm there are four gun-related accidents within the home.” Ibid. That tradeoff would not bear mention if the statute did not prevent stopping intruders by firearms. Footnote 29 The Supreme Court of Pennsylvania described the amount of five shillings in a contract matter in 1792 as “nominal consideration.” Morris’s Lessee v. Smith, 4 Dall. 119, 120 (Pa. 1792). Many of the laws cited punished violation with fine in a similar amount; the 1783 Massachusetts gunpowder-storage law carried a somewhat larger fine of 10 (200 shillings) and forfeiture of the weapon.
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553.US.591
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Petitioner Engquist, an Oregon public employee, filed suit against respondents—her agency, her supervisor, and a co-worker—asserting, inter alia, claims under the Equal Protection Clause: She alleged she had been discriminated against based on her race, sex, and national origin, and she also brought a so-called “class-of-one” claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for arbitrary, vindictive, and malicious reasons. The jury rejected the class-membership equal protection claims, but found for Engquist on her class-of-one claim. The Ninth Circuit reversed in relevant part. Although recognizing that this Court had upheld a class-of-one equal protection challenge to state legislative and regulatory action in Village of Willowbrook v. Olech, 528 U. S. 562, the court below emphasized that this Court has routinely afforded government greater leeway when it acts as employer rather than regulator. The Court concluded that extending the class-of-one theory to the public-employment context would lead to undue judicial interference in state employment practices and invalidate public at-will employment. Held: The class-of-one theory of equal protection does not apply in the public employment context. Pp. 4–16. (a) There is a crucial difference between the government exercising “the power to regulate or license, as lawmaker,” and acting “as proprietor, to manage [its] internal operation.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896. Thus, in the public-employment context, the Court has recognized that government has significantly greater leeway in its dealings with citizen employees than in bringing its sovereign power to bear on citizens at large. See, e.g., O’Connor v. Ortega, 480 U. S. 709, 721–722. The relevant precedent establishes two main principles: First, government employees do not lose their constitutional rights when they go to work, but those rights must be balanced against the realities of the employment context. See, e.g., id., at 721. Second, in striking the appropriate balance, the Court considers whether the claimed employee right implicates the relevant constitutional provision’s basic concerns, or whether the right can more readily give way to the requirements of the government as employer. See, e.g., Connick v. Myers, 461 U. S. 138. Pp. 4–8. (b) The Court’s equal protection jurisprudence has typically been concerned with governmental classifications that “affect some groups of citizens differently than others.” McGowan v. Maryland, 366 U. S. 420, 425. Olech did recognize that a class-of-one equal protection claim can in some circumstances be sustained. Its recognition of that theory, however, was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle to the facts in that case: The government singled Olech out with regard to its regulation of property, and the cases upon which the Court relied concerned property assessment and taxation schemes that were applied in a singular way to particular citizens. What seems to have been significant in Olech and the cited cases was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. This differential treatment raised a concern of arbitrary classification, and therefore required that the State provide a rational basis for it. There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases treating like individuals differently is an accepted consequence of the discretion granted to governmental officials. This principle applies most clearly in the employment context, where decisions are often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify. Unlike the context of arm’s-length regulation, such as in Olech, treating seemingly similarly situated individuals differently in the employment context is par for the course. It is no proper challenge to what in its nature is a subjective and individualized decision that it was subjective and individualized. That the Court has never found the Equal Protection Clause implicated in this area is not surprising, given the historical understanding of the at-will nature of government employment. See, e.g., Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896. Recognition of a claim that the State treated an employee differently from others for a bad reason, or for no reason at all, is simply contrary to the at-will concept. The Constitution does not require repudiating that familiar doctrine. Finally, the Court is guided, as in the past, by the “common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick, supra, at 143. If class-of-one claims were recognized in the employment context, any personnel action in which a wronged employee can conjure up a claim of differential treatment would suddenly become the basis for a federal constitutional claim. The Equal Protection Clause does not require “[t]his displacement of managerial discretion by judicial supervision.” Garcetti v. Ceballos, 547 U. S. 410, 423. Pp. 8–16. 478 F. 3d 985, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.
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The question in this case is whether a public employee can state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee’s membership in any particular class. We hold that such a “class-of-one” theory of equal protection has no place in the public employment context. I Anup Engquist, the petitioner in this case, was hired in 1992 by Norma Corristan to be an international food standard specialist for the Export Service Center (ESC), a laboratory within the Oregon Department of Agriculture (ODA). During the course of her employment, Engquist experienced repeated problems with Joseph Hyatt, another ODA employee, complaining to Corristan that he had made false statements about her and otherwise made her life difficult. Corristan responded by directing Hyatt to attend diversity and anger management training. In 2001, John Szczepanski, an assistant director of ODA, assumed responsibility over ESC, supervising Corristan, Hyatt, and Engquist. Szczepanski told a client that he could not “control” Engquist, and that Engquist and Corristan “would be gotten rid of.” When Engquist and Hyatt both applied for a vacant managerial post within ESC, Szczepanski chose Hyatt despite Engquist’s greater experience in the relevant field. Later that year, during a round of across-the-board budget cuts in Oregon, Szczepanski eliminated Corristan’s position. Finally, on January 31, 2002, Engquist was informed that her position was being eliminated because of reorganization. Engquist’s collective-bargaining agreement gave her the opportunity either to “bump” to another position at her level, or to take a demotion. She was found unqualified for the only other position at her level and declined a demotion, and was therefore effectively laid off. Engquist subsequently brought suit in the United States District Court for the District of Oregon against ODA, Szczepanski, and Hyatt, all respondents here, alleging violations of federal antidiscrimination statutes, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and state law. As to Engquist’s equal protection claim, she alleged that the defendants discriminated against her on the basis of her race, sex, and national origin. She also brought what is known as a “class-of-one” equal protection claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for “arbitrary, vindictive, and malicious reasons.” App. 10. The District Court granted the respondents’ motion for summary judgment as to some of Engquist’s claims, but allowed others to go forward, including each of the equal protection claims. As relevant to this case, the District Court found Engquist’s class-of-one equal protection claim legally viable, deciding that the class-of-one theory was fully applicable in the employment context. Civ. No. 02–1637–AS (D. Ore., Sept. 14, 2004), App. 58, 2004 WL 2066748, *5. The court held that Engquist could succeed on that theory if she could prove “that she was singled out as a result of animosity on the part of Hyatt and Szczepanski”—i.e., “that their actions were spiteful efforts to punish her for reasons unrelated to any legitimate state objective”—and if she could demonstrate, on the basis of that animosity, that “she was treated differently than others who were similarly situated.” Ibid. The jury rejected Engquist’s claims of discrimination for membership in a suspect class—her race, sex, and national origin claims—but found in her favor on the class-of-one claim. Specifically, the jury found that Hyatt and Szczepanski “intentionally treat[ed] [Engquist] differently than others similarly situated with respect to the denial of her promotion, termination of her employment, or denial of bumping rights without any rational basis and solely for arbitrary, vindictive or malicious reasons.” App. to Pet. for Cert. 3–4. The jury also found for Engquist on several of her other claims, and awarded her $175,000 in compensatory damages and $250,000 in punitive damages. The Court of Appeals reversed in relevant part. It recognized that this Court had upheld a class-of-one equal protection challenge to state legislative and regulatory action in Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam). 478 F. 3d 985, 992–993 (CA9 2007). The court below also acknowledged that other Circuits had applied Olech in the public employment context, id., at 993 (citing cases), but it disagreed with those courts on the ground that our cases have routinely afforded government greater leeway when it acts as employer rather than regulator, id., at 993–996. The court concluded that extending the class-of-one theory of equal protection to the public employment context would lead to undue judicial interference in state employment practices and “completely invalidate the practice of public at-will employment.” Id., at 995. The court accordingly held that the class-of-one theory is “inapplicable to decisions made by public employers with regard to their employees.” Id., at 996. Judge Reinhardt dissented, “agree[ing] with the other circuits that the class-of-one theory of equal protection is applicable to public employment decisions.” Id., at 1010. We granted certiorari to resolve this disagreement in the lower courts, 552 U. S. __ (2008), and now affirm. II Engquist argues that the Equal Protection Clause forbids public employers from irrationally treating one employee differently from others similarly situated, regardless of whether the different treatment is based on the employee’s membership in a particular class. She reasons that in Olech, supra, we recognized in the regulatory context a similar class-of-one theory of equal protection, Brief for Petitioner 14–15; that the Equal Protection Clause protects individuals, not classes, id., at 15–17; that the Clause proscribes “discrimination arising not only from a legislative act but also from the conduct of an administrative official,” id., at 17; and that the Constitution applies to the State not only when it acts as regulator, but also when it acts as employer, id., at 23–29. Thus, Engquist concludes that class-of-one claims can be brought against public employers just as against any other state actors, id., at 29–32, and that differential treatment of government employees—even when not based on membership in a class or group—violates the Equal Protection Clause unless supported by a rational basis, id., at 32, 39–45. We do not quarrel with the premises of Engquist’s argument. It is well settled that the Equal Protection Clause “protect[s] persons, not groups,” Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 227 (1995) (emphasis omitted), and that the Clause’s protections apply to administrative as well as legislative acts, see, e.g., Raymond v. Chicago Union Traction Co., 207 U. S. 20, 35–36 (1907). It is equally well settled that States do not escape the strictures of the Equal Protection Clause in their role as employers. See, e.g., New York City Transit Authority v. Beazer, 440 U. S. 568 (1979); Harrah Independent School Dist. v. Martin, 440 U. S. 194 (1979) (per curiam); Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976) (per curiam). We do not, however, agree that Engquist’s conclusion follows from these premises. Our traditional view of the core concern of the Equal Protection Clause as a shield against arbitrary classifications, combined with unique considerations applicable when the government acts as employer as opposed to sovereign, lead us to conclude that the class-of-one theory of equal protection does not apply in the public employment context. A We have long held the view that there is a crucial difference, with respect to constitutional analysis, between the government exercising “the power to regulate or license, as lawmaker,” and the government acting “as proprietor, to manage [its] internal operation.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896 (1961). This distinction has been particularly clear in our review of state action in the context of public employment. Thus, “the government as employer indeed has far broader powers than does the government as sovereign.” Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion). “[T]he extra power the government has in this area comes from the nature of the government’s mission as employer. Government agencies are charged by law with doing particular tasks. Agencies hire employees to help do those tasks as effectively and efficiently as possible.” Id., at 674–675. See also Connick v. Myers, 461 U. S. 138, 150–151 (1983) (explaining that the government has a legitimate interest “in ‘promot[ing] efficiency and integrity in the discharge of official duties, and [in] maintain[ing] proper discipline in the public service’ ” (quoting Ex parte Curtis, 106 U. S. 371, 373 (1882) (alterations in original))). “The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” Waters, supra, at 675 (plurality opinion). Given the “common-sense realization that government offices could not function if every employment decision became a constitutional matter,” Connick, supra, at 143, “constitutional review of government employment decisions must rest on different principles than review of … restraints imposed by the government as sovereign,” Waters, supra, at 674 (plurality opinion). In light of these basic principles, we have often recognized that government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large. Thus, for example, we have held that the Fourth Amendment does not require public employers to obtain warrants before conducting a search of an employee’s office. O’Connor v. Ortega, 480 U. S. 709, 721–722 (1987) (plurality opinion). See also id., at 732 (Scalia, J., concurring in judgment). Although we recognized that the “legitimate privacy interests of public employees in the private objects they bring to the workplace may be substantial,” we found that “[a]gainst these privacy interests … must be balanced the realities of the workplace, which strongly suggest that a warrant requirement would be unworkable.” Id., at 721 (plurality opinion). We have also found that the Due Process Clause does not protect a public employee from discharge, even when such discharge was mistaken or unreasonable. See Bishop v. Wood, 426 U. S. 341, 350 (1976) (“The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions”). Our public-employee speech cases are particularly instructive. In Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968), we explained that, in analyzing a claim that a public employee was deprived of First Amendment rights by her employer, we must seek “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” We analyzed the contours of this balance more fully in Connick v. Myers, supra. We explained that the First Amendment protects public-employee speech only when it falls within the core of First Amendment protection—speech on matters of public concern. We recognized that the “ ‘First Amendment does not protect speech and assembly only to the extent it can be characterized as political,’ ” and that the government therefore could not generally prohibit or punish, in its capacity as sovereign, speech on the ground that it does not touch upon matters of public concern, id., at 147 (quoting Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 223 (1967)). But “[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices.” Connick, 461 U. S., at 146. As we explained, “absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Id., at 147 (citing Bishop, supra, at 349–350). Our precedent in the public-employee context therefore establishes two main principles: First, although government employees do not lose their constitutional rights when they accept their positions, those rights must be balanced against the realities of the employment context. Second, in striking the appropriate balance, we consider whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer. With these principles in mind, we come to the question whether a class-of-one theory of equal protection is cognizable in the public employment context. B Our equal protection jurisprudence has typically been concerned with governmental classifications that “affect some groups of citizens differently than others.” McGowan v. Maryland, 366 U. S. 420, 425 (1961). See, e.g., Ross v. Moffitt, 417 U. S. 600, 609 (1974) (“ ‘Equal Protection’ … emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable”); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 60 (1973) (Stewart, J., concurring) (“[T]he basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes”). Plaintiffs in such cases generally allege that they have been arbitrarily classified as members of an “identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979). Engquist correctly argues, however, that we recognized in Olech that an equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called “class of one.” In Olech, a property owner had asked the village of Willowbrook to connect her property to the municipal water supply. Although the village had required only a 15-foot easement from other property owners seeking access to the water supply, the village conditioned Olech’s connection on a grant of a 33-foot easement. Olech sued the village, claiming that the village’s requirement of an easement 18 feet longer than the norm violated the Equal Protection Clause. Although Olech had not alleged that the village had discriminated against her based on membership in an identifiable class, we held that her complaint stated a valid claim under the Equal Protection Clause because it alleged that she had “been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” 528 U. S., at 564 (citing Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923), and Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989)). Recognition of the class-of-one theory of equal protection on the facts in Olech was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle. That case involved the government’s regulation of property. Similarly, the cases upon which the Court in Olech relied concerned property assessment and taxation schemes. See Allegheny Pittsburgh, supra; Sioux City Bridge, supra. We expect such legislative or regulatory classifications to apply “without respect to persons,” to borrow a phrase from the judicial oath. See 28 U. S. C. §453. As we explained long ago, the Fourteenth Amendment “requires that all persons subjected to … legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Hayes v. Missouri, 120 U. S. 68, 71–72 (1887). When those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being “treated alike, under like circumstances and conditions.” Thus, when it appears that an individual is being singled out by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a “rational basis for the difference in treatment.” Olech, 528 U. S., at 564. What seems to have been significant in Olech and the cases on which it relied was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations—at least not with regard to easement length, however typical such determinations may be as a general zoning matter. See id., at 565 (Breyer, J., concurring in result). Rather, the complaint alleged that the board consistently required only a 15-foot easement, but subjected Olech to a 33-foot easement. This differential treatment raised a concern of arbitrary classification, and we therefore required that the State provide a rational basis for it. In Allegheny Pittsburgh, cited by the Olech Court, the applicable standard was market value, but the county departed from that standard in basing some assessments on quite dated purchase prices. Again, there was no suggestion that the “dramatic differences in valuation” for similar property parcels, 488 U. S., at 341, were based on subjective considerations of the sort on which appraisers often rely, see id., at 338–342, 345. Sioux City Bridge, also cited in Olech, was the same sort of case, recognizing an equal protection claim when one taxpayer’s property was assessed at 100 percent of its value, while all other property was assessed at 55 percent, without regard to articulated differences in the properties. See 260 U. S., at 445–447. There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be “treated alike, under like circumstances and conditions” is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise. Suppose, for example, that a traffic officer is stationed on a busy highway where people often drive above the speed limit, and there is no basis upon which to distinguish them. If the officer gives only one of those people a ticket, it may be good English to say that the officer has created a class of people that did not get speeding tickets, and a “class of one” that did. But assuming that it is in the nature of the particular government activity that not all speeders can be stopped and ticketed, complaining that one has been singled out for no reason does not invoke the fear of improper government classification. Such a complaint, rather, challenges the legitimacy of the underlying action itself—the decision to ticket speeders under such circumstances. Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action. It is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized. This principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify. As Engquist herself points out, “[u]nlike the zoning official, the public employer often must take into account the individual personalities and interpersonal relationships of employees in the workplace. The close relationship between the employer and employee, and the varied needs and interests involved in the employment context, mean that considerations such as concerns over personality conflicts that would be unreasonable as grounds for ‘arm’s-length’ government decisions (e.g., zoning, licensing) may well justify different treatment of a public employee.” Brief for Petitioner 48. Unlike the context of arm’s-length regulation, such as in Olech, treating seemingly similarly situated individuals differently in the employment context is par for the course. Thus, the class-of-one theory of equal protection—which presupposes that like individuals should be treated alike, and that to treat them differently is to classify them in a way that must survive at least rationality review—is simply a poor fit in the public employment context. To treat employees differently is not to classify them in a way that raises equal protection concerns. Rather, it is simply to exercise the broad discretion that typically characterizes the employer-employee relationship. A challenge that one has been treated individually in this context, instead of like everyone else, is a challenge to the underlying nature of the government action. Of course, that is not to say that the Equal Protection Clause, like other constitutional provisions, does not apply to public employers. Indeed, our cases make clear that the Equal Protection Clause is implicated when the government makes class-based decisions in the employment context, treating distinct groups of individuals categorically differently. See, e.g., Beazer, 440 U. S., at 593 (upholding city’s exclusion of methadone users from employment under rational-basis review); Martin, 440 U. S., at 199–201 (classification between teachers who had complied with a continuing-education requirement and those who had not is rational and does not violate the Equal Protection Clause); Murgia, 427 U. S., at 314–317 (upholding a mandatory retirement age—a classification based on age—under rational-basis review). The dissent’s broad statement that we “excep[t] state employees from the Fourteenth Amendment’s protection against unequal and irrational treatment at the hands of the State,” post, at 2 (opinion of Stevens, J.), is thus plainly not correct. But we have never found the Equal Protection Clause implicated in the specific circumstance where, as here, government employers are alleged to have made an individualized, subjective personnel decision in a seemingly arbitrary or irrational manner. This is not surprising, given the historical understanding of the nature of government employment. We long ago recognized the “settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.” McElroy, 367 U. S., at 896. The basic principle of at-will employment is that an employee may be terminated for a “ ‘good reason, bad reason, or no reason at all.’ ” Reply Brief for Petitioner 27. See Andrews v. Louisville & Nashville R. Co., 406 U. S. 320, 324 (1972) (“[T]he very concept of ‘wrongful discharge’ implies some sort of statutory or contractual standard that modifies the traditional common-law rule that a contract of employment is terminable by either party at will”). Thus, “[w]e have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information.” Waters, 511 U. S., at 679 (plurality opinion). See also Connick, 461 U. S., at 146–147 (“[O]rdinary dismissals from government service … are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable” (citing Board of Regents of State Colleges v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, 408 U. S. 593 (1972); and Bishop, 426 U. S. 341)). “And an at-will government employee … generally has no claim based on the Constitution at all.” Waters, supra, at 679 (plurality opinion). See, e.g., Bishop, supra, at 349–350. State employers cannot, of course, take personnel actions that would independently violate the Constitution. See supra, at 5–8. But recognition of a class-of-one theory of equal protection in the public employment context—that is, a claim that the State treated an employee differently from others for a bad reason, or for no reason at all—is simply contrary to the concept of at-will employment. The Constitution does not require repudiating that familiar doctrine. To be sure, Congress and all the States have, for the most part, replaced at-will employment with various statutory schemes protecting public employees from discharge for impermissible reasons. See, e.g., 5 U. S. C. §2302(b)(10) (2006 ed.) (supervisor of covered federal employee may not “discriminate … on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others”). See also Brief for United States as Amicus Curiae 20–21. But a government’s decision to limit the ability of public employers to fire at will is an act of legislative grace, not constitutional mandate. Indeed, recognizing the sort of claim Engquist presses could jeopardize the delicate balance governments have struck between the rights of public employees and “the government’s legitimate purpose in ‘promot[ing] efficiency and integrity in the discharge of official duties, and [in] maintain[ing] proper discipline in the public service.’ ” Connick, supra, at 151 (quoting Ex parte Curtis, 106 U. S., at 373; alterations in original). Thus, for example, although most federal employees are covered by the Civil Service Reform Act of 1978, Pub. L. 95–454, Congress has specifically excluded some groups of employees from its protection, see, e.g., 5 U. S. C. §2302(a)(2)(C) (2006 ed.) (excluding from coverage, inter alia, the Federal Bureau of Investigation, the Central Intelligence Agency, and the Defense Intelligence Agency). Were we to find that the Equal Protection Clause subjects the Government to equal protection review for every allegedly arbitrary employment action, we will have undone Congress’s (and the States’) careful work. In concluding that the class-of-one theory of equal protection has no application in the public employment context—and that is all we decide—we are guided, as in the past, by the “common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick, supra, at 143. If, as Engquist suggests, plaintiffs need not claim discrimination on the basis of membership in some class or group, but rather may argue only that they were treated by their employers worse than other employees similarly situated, any personnel action in which a wronged employee can conjure up a claim of differential treatment will suddenly become the basis for a federal constitutional claim. Indeed, an allegation of arbitrary differential treatment could be made in nearly every instance of an assertedly wrongful employment action—not only hiring and firing decisions, but any personnel action, such as promotion, salary, or work assignments—on the theory that other employees were not treated wrongfully. See 478 F. 3d, at 995. On Engquist’s view, every one of these employment decisions by a government employer would become the basis for an equal protection complaint. Engquist assures us that accepting her view would not pose too much of a practical problem. Specifically, Engquist argues that a plaintiff in a class-of-one employment case would have to prove that the government’s differential treatment was intentional, that the plaintiff was treated differently from other similarly situated persons, and that the unequal treatment was not rationally related to a legitimate government purpose. Brief for Petitioner 36–39. And because a “governmental employment decision is … rational whenever the discrimination relates to a legitimate government interest,” it is in practice “difficult for plaintiffs to show that the government has failed to meet this standard.” Id., at 41. Justice Stevens makes a similar argument, stating “that all but a handful [of class-of-one complaints] are dismissed well in advance of trial.” Post, at 7. We agree that, even if we accepted Engquist’s claim, it would be difficult for a plaintiff to show that an employment decision is arbitrary. But this submission is beside the point. The practical problem with allowing class-of-one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through them in a search for the proverbial needle in a haystack. The Equal Protection Clause does not require “[t]his displacement of managerial discretion by judicial supervision.” Garcetti v. Ceballos, 547 U. S. 410, 423 (2006). In short, ratifying a class-of-one theory of equal protection in the context of public employment would impermissibly “constitutionalize the employee grievance.” Connick, 461 U. S., at 154. “The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.” Bishop, supra, at 349. Public employees typically have a variety of protections from just the sort of personnel actions about which Engquist complains, but the Equal Protection Clause is not one of them. The judgment of the Court of Appeals is affirmed. It is so ordered.
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554.US.471
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In 1989, petitioners’ (collectively, Exxon) supertanker grounded on a reef off Alaska, spilling millions of gallons of crude oil into Prince William Sound. The accident occurred after the tanker’s captain, Joseph Hazelwood—who had a history of alcohol abuse and whose blood still had a high alcohol level 11 hours after the spill—inexplicably exited the bridge, leaving a tricky course correction to unlicensed subordinates. Exxon spent some $2.1 billion in cleanup efforts, pleaded guilty to criminal violations occasioning fines, settled a civil action by the United States and Alaska for at least $900 million, and paid another $303 million in voluntary payments to private parties. Other civil cases were consolidated into this one, brought against Exxon, Hazelwood, and others to recover economic losses suffered by respondents (hereinafter Baker), who depend on Prince William Sound for their livelihoods. At Phase I of the trial, the jury found Exxon and Hazelwood reckless (and thus potentially liable for punitive damages) under instructions providing that a corporation is responsible for the reckless acts of employees acting in a managerial capacity in the scope of their employment. In Phase II, the jury awarded $287 million in compensatory damages to some of the plaintiffs; others had settled their compensatory claims for $22.6 million. In Phase III, the jury awarded $5,000 in punitive damages against Hazelwood and $5 billion against Exxon. The Ninth Circuit upheld the Phase I jury instruction on corporate liability and ultimately remitted the punitive damages award against Exxon to $2.5 billion. Held: 1. Because the Court is equally divided on whether maritime law allows corporate liability for punitive damages based on the acts of managerial agents, it leaves the Ninth Circuit’s opinion undisturbed in this respect. Of course, this disposition is not precedential on the derivative liability question. See, e.g., Neil v. Biggers, 409 U. S. 188, 192. Pp. 7–10. 2. The Clean Water Act’s water pollution penalties, 33 U. S. C. §1321, do not preempt punitive-damages awards in maritime spill cases. Section 1321(b) protects “navigable waters … , adjoining shorelines, … [and] natural resources,” subject to a saving clause reserving “obligations … under any … law for damages to any … privately owned property resulting from [an oil] discharge,” §1321(o). Exxon’s admission that the CWA does not displace compensatory remedies for the consequences of water pollution, even those for economic harms, leaves the company with the untenable claim that the CWA somehow preempts punitive damages, but not compensatory damages, for economic loss. Nothing in the statute points to that result, and the Court has rejected similar attempts to sever remedies from their causes of action, see Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 255–256. There is no clear indication of congressional intent to occupy the entire field of pollution remedies, nor is it likely that punitive damages for private harms will have any frustrating effect on the CWA’s remedial scheme. Pp. 10–15. 3. The punitive damages award against Exxon was excessive as a matter of maritime common law. In the circumstances of this case, the award should be limited to an amount equal to compensatory damages. Pp. 15–42. (a) Although legal codes from ancient times through the Middle Ages called for multiple damages for certain especially harmful acts, modern Anglo-American punitive damages have their roots in 18th-century English law and became widely accepted in American courts by the mid-19th century. See, e.g., Day v. Woodworth, 13 How. 363, 371. Pp. 16–17. (b) The prevailing American rule limits punitive damages to cases of “enormity,” Day v. Woodworth, 13 How. 363, 371, in which a defendant’s conduct is outrageous, owing to gross negligence, willful, wanton, and reckless indifference for others’ rights, or even more deplorable behavior. The consensus today is that punitive damages are aimed at retribution and deterring harmful conduct. Pp. 17–21. (c) State regulation of punitive damages varies. A few States award them rarely, or not at all, and others permit them only when authorized by statute. Many States have imposed statutory limits on punitive awards, in the form of absolute monetary caps, a maximum ratio of punitive to compensatory damages, or, frequently, some combination of the two. Pp. 21–23. (d) American punitive damages have come under criticism in recent decades, but the most recent studies tend to undercut much of it. Although some studies show the dollar amounts of awards growing over time, even in real terms, most accounts show that the median ratio of punitive to compensatory awards remains less than 1:1. Nor do the data show a marked increase in the percentage of cases with punitive awards. The real problem is the stark unpredictability of punitive awards. Courts are concerned with fairness as consistency, and the available data suggest that the spread between high and low individual awards is unacceptable. The spread in state civil trials is great, and the outlier cases subject defendants to punitive damages that dwarf the corresponding compensatories. The distribution of judge-assessed awards is narrower, but still remarkable. These ranges might be acceptable if they resulted from efforts to reach a generally accepted optimal level of penalty and deterrence in cases involving a wide range of circumstances, but anecdotal evidence suggests that is not the case, see, e.g., Gore, supra, at 565, n. 8. Pp. 24–27. (e) This Court’s response to outlier punitive damages awards has thus far been confined by claims that state-court awards violated due process. See, e.g., State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 425. In contrast, today’s enquiry arises under federal maritime jurisdiction and requires review of a jury award at the level of judge-made federal common law that precedes and should obviate any application of the constitutional standard. In this context, the unpredictability of high punitive awards is in tension with their punitive function because of the implication of unfairness that an eccentrically high punitive verdict carries. A penalty should be reasonably predictable in its severity, so that even Holmes’s “bad man” can look ahead with some ability to know what the stakes are in choosing one course of action or another. And a penalty scheme ought to threaten defendants with a fair probability of suffering in like degree for like damage. Cf. Koon v. United States, 518 U. S. 81, 113. Pp. 28–29. (f) The Court considers three approaches, one verbal and two quantitative, to arrive at a standard for assessing maritime punitive damages. Pp. 29–42. (i) The Court is skeptical that verbal formulations are the best insurance against unpredictable outlier punitive awards, in light of its experience with attempts to produce consistency in the analogous business of criminal sentencing. Pp. 29–32. (ii) Thus, the Court looks to quantified limits. The option of setting a hard-dollar punitive cap, however, is rejected because there is no “standard” tort or contract injury, making it difficult to settle upon a particular dollar figure as appropriate across the board; and because a judicially selected dollar cap would carry the serious drawback that the issue might not return to the docket before there was a need to revisit the figure selected. Pp. 32–39. (iii) The more promising alternative is to peg punitive awards to compensatory damages using a ratio or maximum multiple. This is the model in many States and in analogous federal statutes allowing multiple damages. The question is what ratio is most appropriate. An acceptable standard can be found in the studies showing the median ratio of punitive to compensatory awards. Those studies reflect the judgments of juries and judges in thousands of cases as to what punitive awards were appropriate in circumstances reflecting the most down to the least blameworthy conduct, from malice and avarice to recklessness to gross negligence. The data in question put the median ratio for the entire gamut at less than 1:1, meaning that the compensatory award exceeds the punitive award in most cases. In a well-functioning system, awards at or below the median would roughly express jurors’ sense of reasonable penalties in cases like this one that have no earmarks of exceptional blameworthiness. Accordingly, the Court finds that a 1:1 ratio is a fair upper limit in such maritime cases. Pp. 39–42. (iv) Applying this standard to the present case, the Court takes for granted the District Court’s calculation of the total relevant compensatory damages at $507.5 million. A punitive-to-compensatory ratio of 1:1 thus yields maximum punitive damages in that amount. P. 42. 472 F. 3d 600 and 490 F. 3d 1066, vacated and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Stevens, Ginsburg, and Breyer, JJ., joined, as to Parts I, II, and III. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Stevens, J., Ginsburg, J., and Breyer, J., filed opinions concurring in part and dissenting in part. Alito, J., took no part in the consideration or decision of the case.
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There are three questions of maritime law before us: whether a shipowner may be liable for punitive damages without acquiescence in the actions causing harm, whether punitive damages have been barred implicitly by federal statutory law making no provision for them, and whether the award of $2.5 billion in this case is greater than maritime law should allow in the circumstances. We are equally divided on the owner’s derivative liability, and hold that the federal statutory law does not bar a punitive award on top of damages for economic loss, but that the award here should be limited to an amount equal to compensatory damages. I On March 24, 1989, the supertanker Exxon Valdez grounded on Bligh Reef off the Alaskan coast, fracturing its hull and spilling millions of gallons of crude oil into Prince William Sound. The owner, petitioner Exxon Shipping Co. (now SeaRiver Maritime, Inc.), and its owner, petitioner Exxon Mobil Corp. (collectively, Exxon), have settled state and federal claims for environmental damage, with payments exceeding $1 billion, and this action by respondent Baker and others, including commercial fishermen and native Alaskans, was brought for economic losses to individuals dependent on Prince William Sound for their livelihoods. A The tanker was over 900 feet long and was used by Exxon to carry crude oil from the end of the Trans-Alaska Pipeline in Valdez, Alaska, to the lower 48 States. On the night of the spill it was carrying 53 million gallons of crude oil, or over a million barrels. Its captain was one Joseph Hazelwood, who had completed a 28-day alcohol treatment program while employed by Exxon, as his superiors knew, but dropped out of a prescribed follow-up program and stopped going to Alcoholics Anonymous meetings. According to the District Court, “[t]here was evidence presented to the jury that after Hazelwood was released from [residential treatment], he drank in bars, parking lots, apartments, airports, airplanes, restaurants, hotels, at various ports, and aboard Exxon tankers.” In re Exxon Valdez, No. A89–0095–CV, Order No. 265 (D. Alaska, Jan. 27, 1995), p. 5, App. F to Pet. for Cert. 255a–256a (hereinafter Order 265). The jury also heard contested testimony that Hazelwood drank with Exxon officials and that members of the Exxon management knew of his relapse. See ibid. Although Exxon had a clear policy prohibiting employees from serving onboard within four hours of consuming alcohol, see In re Exxon Valdez, 270 F. 3d 1215, 1238 (CA9 2001), Exxon presented no evidence that it monitored Hazelwood after his return to duty or considered giving him a shoreside assignment, see Order 265, p. 5, supra, at 256a. Witnesses testified that before the Valdez left port on the night of the disaster, Hazelwood downed at least five double vodkas in the waterfront bars of Valdez, an intake of about 15 ounces of 80-proof alcohol, enough “that a non-alcoholic would have passed out.” 270 F. 3d, at 1236. The ship sailed at 9:12 p.m. on March 23, 1989, guided by a state-licensed pilot for the first leg out, through the Valdez Narrows. At 11:20 p.m., Hazelwood took active control and, owing to poor conditions in the outbound shipping lane, radioed the Coast Guard for permission to move east across the inbound lane to a less icy path. Under the conditions, this was a standard move, which the last outbound tanker had also taken, and the Coast Guard cleared the Valdez to cross the inbound lane. The tanker accordingly steered east toward clearer waters, but the move put it in the path of an underwater reef off Bligh Island, thus requiring a turn back west into the shipping lane around Busby Light, north of the reef. Two minutes before the required turn, however, Hazelwood left the bridge and went down to his cabin in order, he said, to do paperwork. This decision was inexplicable. There was expert testimony that, even if their presence is not strictly necessary, captains simply do not quit the bridge during maneuvers like this, and no paperwork could have justified it. And in fact the evidence was that Hazelwood’s presence was required, both because there should have been two officers on the bridge at all times and his departure left only one, and because he was the only person on the entire ship licensed to navigate this part of Prince William Sound. To make matters worse, before going below Hazelwood put the tanker on autopilot, speeding it up, making the turn trickier, and any mistake harder to correct. As Hazelwood left, he instructed the remaining officer, third mate Joseph Cousins, to move the tanker back into the shipping lane once it came abeam of Busby Light. Cousins, unlicensed to navigate in those waters, was left alone with helmsman Robert Kagan, a nonofficer. For reasons that remain a mystery, they failed to make the turn at Busby Light, and a later emergency maneuver attempted by Cousins came too late. The tanker ran aground on Bligh Reef, tearing the hull open and spilling 11 million gallons of crude oil into Prince William Sound. After Hazelwood returned to the bridge and reported the grounding to the Coast Guard, he tried but failed to rock the Valdez off the reef, a maneuver which could have spilled more oil and caused the ship to founder.[Footnote 1] The Coast Guard’s nearly immediate response included a blood test of Hazelwood (the validity of which Exxon disputes) showing a blood-alcohol level of .061 eleven hours after the spill. Supp. App. 307sa. Experts testified that to have this much alcohol in his bloodstream so long after the accident, Hazelwood at the time of the spill must have had a blood-alcohol level of around .241, Order 265, p. 5, supra, at 256a, three times the legal limit for driving in most States. In the aftermath of the disaster, Exxon spent around $2.1 billion in cleanup efforts. The United States charged the company with criminal violations of the Clean Water Act, 33 U. S. C. §§1311(a) and 1319(c)(1); the Refuse Act of 1899, 33 U. S. C. §§407 and 411; the Migratory Bird Treaty Act, 16 U. S. C. §§703 and 707(a); the Ports and Waterways Safety Act, 33 U. S. C. §1232(b)(1); and the Dangerous Cargo Act, 46 U. S. C. §3718(b). Exxon pleaded guilty to violations of the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act and agreed to pay a $150 million fine, later reduced to $25 million plus restitution of $100 million. A civil action by the United States and the State of Alaska for environmental harms ended with a consent decree for Exxon to pay at least $900 million toward restoring natural resources, and it paid another $303 million in voluntary settlements with fishermen, property owners, and other private parties. B The remaining civil cases were consolidated into this one against Exxon, Hazelwood, and others. The District Court for the District of Alaska divided the plaintiffs seeking compensatory damages into three classes: commercial fishermen, Native Alaskans, and landowners. At Exxon’s behest, the court also certified a mandatory class of all plaintiffs seeking punitive damages, whose number topped 32,000. Respondents here, to whom we will refer as Baker for convenience, are members of that class. For the purposes of the case, Exxon stipulated to its negligence in the Valdez disaster and its ensuing liability for compensatory damages. The court designed the trial accordingly: Phase I considered Exxon and Hazelwood’s recklessness and thus their potential for punitive liability; Phase II set compensatory damages for commercial fishermen and Native Alaksans; and Phase III determined the amount of punitive damages for which Hazelwood and Exxon were each liable. (A contemplated Phase IV, setting compensation for still other plaintiffs, was obviated by settlement.) In Phase I, the jury heard extensive testimony about Hazelwood’s alcoholism and his conduct on the night of the spill, as well as conflicting testimony about Exxon officials’ knowledge of Hazelwood’s backslide. At the close of Phase I, the Court instructed the jury in part that “[a] corporation is responsible for the reckless acts of those employees who are employed in a managerial capacity while acting in the scope of their employment. The reckless act or omission of a managerial officer or employee of a corporation, in the course and scope of the performance of his duties, is held in law to be the reckless act or omission of the corporation.” App. K to Pet. for Cert. 301a. The Court went on that “[a]n employee of a corporation is employed in a managerial capacity if the employee supervises other employees and has responsibility for, and authority over, a particular aspect of the corporation’s business.” Ibid. Exxon did not dispute that Hazelwood was a managerial employee under this definition, see App. G, id., at 264a, n. 8, and the jury found both Hazelwood and Exxon reckless and thus potentially liable for punitive damages, App. L, id., at 303a.[Footnote 2] In Phase II the jury awarded $287 million in compensatory damages to the commercial fishermen. After the Court deducted released claims, settlements, and other payments, the balance outstanding was $19,590,257. Meanwhile, most of the Native Alaskan class had settled their compensatory claims for $20 million, and those who opted out of that settlement ultimately settled for a total of around $2.6 million. In Phase III, the jury heard about Exxon’s management’s acts and omissions arguably relevant to the spill. See App. 1291–1320, 1353–1367. At the close of evidence, the court instructed the jurors on the purposes of punitive damages, emphasizing that they were designed not to provide compensatory relief but to punish and deter the defendants. See App. to Brief in Opposition 12a–14a. The court charged the jury to consider the reprehensibility of the defendants’ conduct, their financial condition, the magnitude of the harm, and any mitigating facts. Id., at 15a. The jury awarded $5,000 in punitive damages against Hazelwood and $5 billion against Exxon. On appeal, the Court of Appeals for the Ninth Circuit upheld the Phase I jury instruction on corporate liability for acts of managerial agents under Circuit precedent. See In re Exxon Valdez, 270 F. 3d, at 1236 (citing Protectus Alpha Nav. Co. v. North Pacific Grain Growers, Inc., 767 F. 2d 1379 (CA9 1985)). With respect to the size of the punitive damages award, however, the Circuit remanded twice for adjustments in light of this Court’s due process cases before ultimately itself remitting the award to $2.5 billion. See 270 F. 3d, at 1246–1247; 472 F. 3d 600, 601, 625 (2006) (per curiam), and 490 F. 3d 1066, 1068 (2007). We granted certiorari to consider whether maritime law allows corporate liability for punitive damages on the basis of the acts of managerial agents, whether the Clean Water Act (CWA), 86 Stat. 816, 33 U. S. C. §1251 et seq. (2000 ed. and Supp. V), forecloses the award of punitive damages in maritime spill cases, and whether the punitive damages awarded against Exxon in this case were excessive as a matter of maritime common law. 552 U. S. ___ (2007). We now vacate and remand. II On the first question, Exxon says that it was error to instruct the jury that a corporation “is responsible for the reckless acts of … employees … in a managerial capacity while acting in the scope of their employment.”[Footnote 3] App. K to Pet. for Cert. 301a. The Courts of Appeals have split on this issue,[Footnote 4] and the company relies primarily on two cases, The Amiable Nancy, 3 Wheat. 546 (1818), and Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101 (1893), to argue that this Court’s precedents are clear that punitive damages are not available against a shipowner for a shipmaster’s recklessness. The former was a suit in admiralty against the owners of The Scourge, a privateer whose officers and crew boarded and plundered a neutral ship, The Amiable Nancy. In upholding an award of compensatory damages, Justice Story observed that, “if this were a suit against the original wrong-doers, it might be proper to … visit upon them in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion, that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages.” The Amiable Nancy, supra, at 558–559 (emphasis in original). Exxon takes this statement as a rule barring punitive liability against shipowners for actions by underlings not “directed,” “countenanced,” or “participated in” by the owners. Exxon further claims that the Court confirmed this rule in Lake Shore, supra, a railway case in which the Court relied on The Amiable Nancy to announce, as a matter of pre-Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), general common law, that “[t]hough [a] principal is liable to make compensation for [intentional torts] by his agent, he is not liable to be punished by exemplary damages for an intent in which he did not participate.” 147 U. S., at 110. Because maritime law remains federal common law, and because the Court has never revisited the issue, Exxon argues that Lake Shore endures as sound evidence of maritime law. And even if the rule of Amiable Nancy and Lake Shore does not control, Exxon urges the Court to fall back to a modern-day variant adopted in the context of Title VII of the Civil Rights Act of 1964 in Kolstad v. American Dental Assn., 527 U. S. 526, 544 (1999), that employers are not subject to punitive damages for discriminatory conduct by their managerial employees if they can show that they maintained and enforced good-faith antidiscrimination policies. Baker supports the Ninth Circuit in upholding the instruction, as it did on the authority of Protectus Alpha Nav. Co., 767 F. 2d 1379, which followed the Restatement rule recognizing corporate liability in punitive damages for reckless acts of managerial employees, see 4 Restatement (Second) of Torts §909(c) (1977) (hereinafter Restatement). Baker says that The Amiable Nancy offers nothing but dictum, because punitive damages were not at issue, and that Lake Shore merely rejected company liability for the acts of a railroad conductor, while saying nothing about liability for agents higher up the ladder, like ship captains. He also makes the broader points that the opinion was criticized for failing to reflect the majority rule of its own time, not to mention its conflict with the respondeat superior rule in the overwhelming share of land-based jurisdictions today. Baker argues that the maritime rule should conform to modern land-based common law, where a majority of States allow punitive damages for the conduct of any employee, and most others follow the Restatement, imposing liability for managerial agents. The Court is equally divided on this question, and “[i]f the judges are divided, the reversal cannot be had, for no order can be made.” Durant v. Essex Co., 7 Wall. 107, 112 (1869). We therefore leave the Ninth Circuit’s opinion undisturbed in this respect, though it should go without saying that the disposition here is not precedential on the derivative liability question. See, e.g., Neil v. Biggers, 409 U. S. 188, 192 (1972); Ohio ex rel. Eaton v. Price, 364 U. S. 263, 264 (1960) (opinion of Brennan, J.). III Exxon next says that, whatever the availability of maritime punitive damages at common law, the CWA preempts them. Baker responds with both procedural and merits arguments, and although we do not dispose of the issue on procedure, a short foray into its history is worthwhile as a cautionary tale. At the pretrial stage, the District Court controlled a flood of motions by an order staying them for any purpose except discovery. The court ultimately adopted a case-management plan allowing receipt of seven specific summary judgment motions already scheduled, and requiring a party with additional motions to obtain the court’s leave. One of the motions scheduled sought summary judgment for Exxon on the ground that the Trans-Alaska Pipeline Authorization Act, 87 Stat. 584, 43 U. S. C. §§1651–1656, displaced maritime common law and foreclosed the availability of punitive damages. The District Court denied the motion. After the jury returned the Phase III punitive-damages verdict on September 16, 1994, the parties stipulated that all post-trial Federal Rules of Civil Procedure 50 and 59 motions would be filed by September 30, and the court so ordered. App. 1410–1411. Exxon filed 11 of them, including several seeking a new trial or judgment as a matter of law on one ground or another going to the punitive damages award, all of which were denied along with the rest. On October 23, 1995, almost 13 months after the stipulated motions deadline, Exxon moved for the District Court to suspend the motions stay, App. to Brief in Opposition 28a–29a, to allow it to file a “Motion and Renewed Motion … for Judgment on Punitive Damages Claims” under Rules 49(a) and 58(2) and, “to the extent they may be applicable, pursuant to Rules 50(b), 56(b), 56(d), 59(a), and 59(e),”[Footnote 5] App. to Brief in Opposition 30a–31a. Exxon’s accompanying memorandum asserted that two recent cases, Glynn v. Roy Al Boat Management Corp., 57 F. 3d 1495 (CA9 1995), and Guevara v. Maritime Overseas Corp., 59 F. 3d 1496 (CA5 1995), suggested that the rule of maritime punitive damages was displaced by federal statutes, including the CWA. On November 2, 1995, the District Court summarily denied Exxon’s request to file the motion, App. to Brief in Opposition 35a, and in January 1996 (following the settlement of the Phase IV compensatory claims) the court entered final judgment. Exxon renewed the CWA preemption argument before the Ninth Circuit. The Court of Appeals recognized that Exxon had raised the CWA argument for the first time 13 months after the Phase III verdict, but decided that the claim “should not be treated as waived,” because Exxon had “consistently argued statutory preemption” throughout the litigation, and the question was of “massive … significance” given the “ambiguous circumstances” of the case. 270 F. 3d, at 1229. On the merits, the Circuit held that the CWA did not preempt maritime common law on punitive damages. Id., at 1230. Although we agree with the Ninth Circuit’s conclusion, its reasons for reaching it do not hold up. First, the reason the court thought that the CWA issue was not in fact waived was that Exxon had alleged other statutory grounds for preemption from the outset of the trial. But that is not enough. It is true that “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Yee v. Escondido, 503 U. S. 519, 534 (1992). But this principle stops well short of legitimizing Exxon’s untimely motion. If “statutory preemption” were a sufficient claim to give Exxon license to rely on newly cited statutes anytime it wished, a litigant could add new constitutional claims as he went along, simply because he had “consistently argued” that a challenged regulation was unconstitutional. See id., at 533 (rejecting substantive due process claim by takings petitioners who failed to preserve it below); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 277, n. 23 (1989) (rejecting due process claim by Eighth-Amendment petitioners). That said, the motion still addressed the Circuit’s discretion, to which the “massive” significance of the question and the “ambiguous circumstances” of the case were said to be relevant. 270 F. 3d, at 1229. “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below,” Singleton v. Wulff, 428 U. S. 106, 120 (1976), when to deviate from this rule being a matter “left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases,” id., at 121. We have previously stopped short of stating a general principle to contain appellate courts’ discretion, see ibid., and we exercise the same restraint today.[Footnote 6] As to the merits, we agree with the Ninth Circuit that Exxon’s late-raised CWA claim should fail. There are two ways to construe Exxon’s argument that the CWA’s penalties for water pollution, see 33 U. S. C. §1321 (2000 ed. and Supp. V), preempt the common law punitive-damages remedies at issue here. The company could be saying that any tort action predicated on an oil spill is preempted unless §1321 expressly preserves it. Section 1321(b) protects “the navigable waters of the United States, adjoining shorelines, . . . [and] natural resources” of the United States, subject to a saving clause reserving “obligations … under any provision of law for damages to any publicly owned or privately owned property resulting from a discharge of any oil,” §1321(o). Exxon could be arguing that, because the saving clause makes no mention of preserving punitive damages for economic loss, they are preempted. But so, of course, would a number of other categories of damages awards that Exxon did not claim were preempted. If Exxon were correct here, there would be preemption of provisions for compensatory damages for thwarting economic activity or, for that matter, compensatory damages for physical, personal injury from oil spills or other water pollution. But we find it too hard to conclude that a statute expressly geared to protecting “water,” “shorelines,” and “natural resources” was intended to eliminate sub silentio oil companies’ common law duties to refrain from injuring the bodies and livelihoods of private individuals. Perhaps on account of its overbreadth, Exxon disclaims taking this position, admitting that the CWA does not displace compensatory remedies for consequences of water pollution, even those for economic harms. See, e.g., Reply Brief for Petitioners 15–16. This concession, however, leaves Exxon with the equally untenable claim that the CWA somehow preempts punitive damages, but not compensatory damages, for economic loss. But nothing in the statutory text points to fragmenting the recovery scheme this way, and we have rejected similar attempts to sever remedies from their causes of action. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 255–256 (1984). All in all, we see no clear indication of congressional intent to occupy the entire field of pollution remedies, see, e.g., United States v. Texas, 507 U. S. 529, 534 (1993) (“In order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law” (internal quotation marks omitted)); nor for that matter do we perceive that punitive damages for private harms will have any frustrating effect on the CWA remedial scheme, which would point to preemption.[Footnote 7] IV Finally, Exxon raises an issue of first impression about punitive damages in maritime law, which falls within a federal court’s jurisdiction to decide in the manner of a common law court, subject to the authority of Congress to legislate otherwise if it disagrees with the judicial result. See U. S. Const., Art. III, §2, cl. 1; see, e.g., Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256, 259 (1979) (“Admiralty law is judge-made law to a great extent”); Romero v. International Terminal Operating Co., 358 U. S. 354, 360–361 (1959) (constitutional grant “empowered the federal courts … to continue the development of [maritime] law”). In addition to its resistance to derivative liability for punitive damages and its preemption claim already disposed of, Exxon challenges the size of the remaining $2.5 billion punitive damages award. Other than its preemption argument, it does not offer a legal ground for concluding that maritime law should never award punitive damages, or that none should be awarded in this case, but it does argue that this award exceeds the bounds justified by the punitive damages goal of deterring reckless (or worse) behavior and the consequently heightened threat of harm. The claim goes to our understanding of the place of punishment in modern civil law and reasonable standards of process in administering punitive law, subjects that call for starting with a brief account of the history behind today’s punitive damages. A The modern Anglo-American doctrine of punitive damages dates back at least to 1763, when a pair of decisions by the Court of Common Pleas recognized the availability of damages “for more than the injury received.” Wilkes v. Wood, Lofft 1, 18, 98 Eng. Rep. 489, 498 (1763) (Lord Chief Justice Pratt). In Wilkes v. Wood, one of the foundations of the Fourth Amendment, exemplary damages awarded against the Secretary of State, responsible for an unlawful search of John Wilkes’s papers, were a spectacular 4,000. See generally Boyd v. United States, 116 U. S. 616, 626 (1886). And in Huckle v. Money, 2 Wils. 205, 206–207, 95 Eng. Rep. 768, 768–769 (K. B. 1763), the same judge who is recorded in Wilkes gave an opinion upholding a jury’s award of 300 (against a government officer again) although “if the jury had been confined by their oath to consider the mere personal injury only, perhaps [20] damages would have been thought damages sufficient.” Awarding damages beyond the compensatory was not, however, a wholly novel idea even then, legal codes from ancient times through the Middle Ages having called for multiple damages for certain especially harmful acts. See, e.g., Code of Hammurabi §8 (R. Harper ed. 1904) (tenfold penalty for stealing the goat of a freed man); Statute of Gloucester, 1278, 6 Edw. I, ch. 5, 1 Stat. at Large 66 (treble damages for waste). But punitive damages were a common law innovation untethered to strict numerical multipliers, and the doctrine promptly crossed the Atlantic, see, e.g., Genay v. Norris, 1 S. C. L. 6, 7 (1784); Coryell v. Colbaugh, 1 N. J. L. 77 (1791), to become widely accepted in American courts by the middle of the 19th century, see, e.g., Day v. Woodworth, 13 How. 363, 371 (1852). B Early common law cases offered various rationales for punitive-damages awards, which were then generally dubbed “exemplary,” implying that these verdicts were justified as punishment for extraordinary wrongdoing, as in Wilkes’s case. Sometimes, though, the extraordinary element emphasized was the damages award itself, the punishment being “for example’s sake,” Tullidge v. Wade, 3 Wils. 18, 19, 95 Eng. Rep. 909 (K. B. 1769) (Lord Chief Justice Wilmot), “to deter from any such proceeding for the future,” Wilkes, supra, at 19, 98 Eng. Rep., at 498–499. See also Coryell, supra, at 77 (instructing the jury “to give damages for example’s sake, to prevent such offences in [the] future”). A third historical justification, which showed up in some of the early cases, has been noted by recent commentators, and that was the need “to compensate for intangible injuries, compensation which was not otherwise available under the narrow conception of compensatory damages prevalent at the time.”[Footnote 8] Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 437–438, n. 11 (2001) (citing, inter alia, Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957)). But see Sebok, What Did Punitive Damages Do? 78 Chi.-Kent L. Rev. 163, 204 (2003) (arguing that “punitive damages have never served the compensatory function attributed to them by the Court in Cooper”). As the century progressed, and “the types of compensatory damages available to plaintiffs … broadened,” Cooper Industries, supra, at 437, n. 11, the consequence was that American courts tended to speak of punitive damages as separate and distinct from compensatory damages, see, e.g., Day, supra, at 371 (punitive damages “hav[e] in view the enormity of [the] offence rather than the measure of compensation to the plaintiff”). See generally 1 L. Schlueter, Punitive Damages §§1.3(C)–(D), 1.4(A) (5th ed. 2005) (hereinafter Schlueter) (describing the “almost total eclipse of the compensatory function” in the decades following the 1830s). Regardless of the alternative rationales over the years, the consensus today is that punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.[Footnote 9] This consensus informs the doctrine in most modern American jurisdictions, where juries are customarily instructed on twin goals of punitive awards. See, e.g., Cal. Jury Instr., Civil, No. 14.72.2 (2008) (“You must now determine whether you should award punitive damages against defendant[s] … for the sake of example and by way of punishment”); N. Y. Pattern Jury Instr., Civil, No. 2:278 (2007) (“The purpose of punitive damages is not to compensate the plaintiff but to punish the defendant … and thereby to discourage the defendant … from acting in a similar way in the future”). The prevailing rule in American courts also limits punitive damages to cases of what the Court in Day, supra, at 371, spoke of as “enormity,” where a defendant’s conduct is “outrageous,” 4 Restatement §908(2), owing to “gross negligence,” “willful, wanton, and reckless indifference for the rights of others,” or behavior even more deplorable, 1 Schlueter §9.3(A).[Footnote 10] Under the umbrellas of punishment and its aim of deterrence, degrees of relative blameworthiness are apparent. Reckless conduct is not intentional or malicious, nor is it necessarily callous toward the risk of harming others, as opposed to unheedful of it. See, e.g., 2 Restatement §500, Comment a, pp. 587–588 (1964) (“Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know . . . of facts which create a high degree of risk of . . . harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so”). Action taken or omitted in order to augment profit represents an enhanced degree of punishable culpability, as of course does willful or malicious action, taken with a purpose to injure. See 4 id., §908, Comment e, p. 466 (1979) (“In determining the amount of punitive damages, … the trier of fact can properly consider not merely the act itself but all the circumstances including the motives of the wrongdoer …”); cf. Alaska Stat. §09.17.020(g) (2006) (higher statutory limit applies where conduct was motivated by financial gain and its adverse consequences were known to the defendant); Ark. Code Ann. §16–55–208(b) (2005) (statutory limit does not apply where the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage). Regardless of culpability, however, heavier punitive awards have been thought to be justifiable when wrongdoing is hard to detect (increasing chances of getting away with it), see, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559, 582 (1996) (“A higher ratio may also be justified in cases in which the injury is hard to detect”), or when the value of injury and the corresponding compensatory award are small (providing low incentives to sue), see, e.g., ibid. (“[L]ow awards of compensatory damages may properly support a higher ratio … if, for example, a particularly egregious act has resulted in only a small amount of economic damages”); 4 Restatement §908, Comment c, p. 465 (“Thus an award of nominal damages … is enough to support a further award of punitive damages, when a tort, … is committed for an outrageous purpose, but no significant harm has resulted”). And, with a broadly analogous object, some regulatory schemes provide by statute for multiple recovery in order to induce private litigation to supplement official enforcement that might fall short if unaided. See, e.g., Reiter v. Sonotone Corp., 442 U. S. 330, 344 (1979) (discussing antitrust treble damages). C State regulation of punitive damages varies. A few States award them rarely, or not at all. Nebraska bars punitive damages entirely, on state constitutional grounds. See, e.g., Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 857, 443 N. W. 2d 566, 574 (1989) (per curiam). Four others permit punitive damages only when authorized by statute: Louisiana, Massachusetts, and Washington as a matter of common law, and New Hampshire by statute codifying common law tradition. See Ross v. Conoco, 2002–0299, p. 14 (La. 10/15/02), 828 So. 2d 546, 555; Flesner v. Technical Communications Corp., 410 Mass. 805, 813, 575 N. E. 2d 1107, 1112 (1991); Fisher Properties v. Arden-Mayfair, Inc., 106 Wash. 2d 826, 852, 726 P. 2d 8, 23 (1986); N. H. Rev. Stat. Ann. §507:16 (1997); see also Fay v. Parker, 53 N. H. 342, 382 (1872). Michigan courts recognize only exemplary damages supportable as compensatory, rather than truly punitive, see Peisner v. Detroit Free Press, Inc., 104 Mich. App. 59, 68, 304 N. W. 2d 814, 817 (1981), while Connecticut courts have limited what they call punitive recovery to the “expenses of bringing the legal action, including attorney’s fees, less taxable costs,” Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 517, n. 38, 656 A. 2d 1009, 1029, n. 38 (1995). As for procedure, in most American jurisdictions the amount of the punitive award is generally determined by a jury in the first instance, and that “determination is then reviewed by trial and appellate courts to ensure that it is reasonable.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 15 (1991); see also Honda Motor Co. v. Oberg, 512 U. S. 415, 421–426 (1994).[Footnote 11] Many States have gone further by imposing statutory limits on punitive awards, in the form of absolute monetary caps, see, e.g., Va. Code Ann. §8.01–38.1 (Lexis 2007) ($350,000 cap), a maximum ratio of punitive to compensatory damages, see, e.g., Ohio Rev. Code Ann. §2315.21(D)(2)(a) (Lexis 2001) (2:1 ratio in most tort cases), or, frequently, some combination of the two, see, e.g., Alaska Stat. §09.17.020(f) (2006) (greater of 3:1 ratio or $500,000 in most actions). The States that rely on a multiplier have adopted a variety of ratios, ranging from 5:1 to 1:1.[Footnote 12] Despite these limitations, punitive damages overall are higher and more frequent in the United States than they are anywhere else. See, e.g., Gotanda, Punitive Damages: A Comparative Analysis, 42 Colum. J. Transnat’l L. 391, 421 (2004); 2 Schlueter §22.0. In England and Wales, punitive, or exemplary, damages are available only for oppressive, arbitrary, or unconstitutional action by government servants; injuries designed by the defendant to yield a larger profit than the likely cost of compensatory damages; and conduct for which punitive damages are expressly authorized by statute. Rookes v. Barnard, [1964] 1 All E. R. 367, 410–411 (H. L.). Even in the circumstances where punitive damages are allowed, they are subject to strict, judicially imposed guidelines. The Court of Appeal in Thompson v. Commissioner of Police of Metropolis, [1998] Q. B. 498, 518, said that a ratio of more than three times the amount of compensatory damages will rarely be appropriate; awards of less than 5,000 are likely unnecessary; awards of 25,000 should be exceptional; and 50,000 should be considered the top. For further contrast with American practice, Canada and Australia allow exemplary damages for outrageous conduct, but awards are considered extraordinary and rarely issue. See 2 Schlueter §§22.1(B), (D). Noncompensatory damages are not part of the civil-code tradition and thus unavailable in such countries as France, Germany, Austria, and Switzerland. See id., §§22.2(A)–(C), (E). And some legal systems not only decline to recognize punitive damages themselves but refuse to enforce foreign punitive judgments as contrary to public policy. See, e.g., Gotanda, Charting Developments Concerning Punitive Damages: Is the Tide Changing? 45 Colum. J. Transnat’l L. 507, 514, 518, 528 (2007) (noting refusals to enforce judgments by Japanese, Italian, and German courts, positing that such refusals may be on the decline, but concluding, “American parties should not anticipate smooth sailing when seeking to have a domestic punitive damages award recognized and enforced in other countries”). D American punitive damages have been the target of audible criticism in recent decades, see, e.g., Note, Developments, The Paths of Civil Litigation, 113 Harv. L. Rev. 1783, 1784–1788 (2000) (surveying criticism), but the most recent studies tend to undercut much of it, see id., at 1787–1788. A survey of the literature reveals that discretion to award punitive damages has not mass-produced runaway awards, and although some studies show the dollar amounts of punitive-damages awards growing over time, even in real terms,[Footnote 13] by most accounts the median ratio of punitive to compensatory awards has remained less than 1:1.[Footnote 14] Nor do the data substantiate a marked increase in the percentage of cases with punitive awards over the past several decades.[Footnote 15] The figures thus show an overall restraint and suggest that in many instances a high ratio of punitive to compensatory damages is substantially greater than necessary to punish or deter. The real problem, it seems, is the stark unpredictability of punitive awards. Courts of law are concerned with fairness as consistency, and evidence that the median ratio of punitive to compensatory awards falls within a reasonable zone, or that punitive awards are infrequent, fails to tell us whether the spread between high and low individual awards is acceptable. The available data suggest it is not. A recent comprehensive study of punitive damages awarded by juries in state civil trials found a median ratio of punitive to compensatory awards of just 0.62:1, but a mean ratio of 2.90:1 and a standard deviation of 13.81. Juries, Judges, and Punitive Damages 269.[Footnote 16] Even to those of us unsophisticated in statistics, the thrust of these figures is clear: the spread is great, and the outlier cases subject defendants to punitive damages that dwarf the corresponding compensatories. The distribution of awards is narrower, but still remarkable, among punitive damages assessed by judges: the median ratio is 0.66:1, the mean ratio is 1.60:1, and the standard deviation is 4.54. Ibid. Other studies of some of the same data show that fully 14% of punitive awards in 2001 were greater than four times the compensatory damages, see Cohen 5, with 18% of punitives in the 1990s more than trebling the compensatory damages, see Ostrom, Rottman, & Goerdt, A Step Above Anecdote: A Profile of the Civil Jury in the 1990s, 79 Judicature 233, 240 (1996). And a study of “financial injury” cases using a different data set found that 34% of the punitive awards were greater than three times the corresponding compensatory damages. Financial Injury Jury Verdicts 333. Starting with the premise of a punitive-damages regime, these ranges of variation might be acceptable or even desirable if they resulted from judges’ and juries’ refining their judgments to reach a generally accepted optimal level of penalty and deterrence in cases involving a wide range of circumstances, while producing fairly consistent results in cases with similar facts. Cf. TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 457–458 (1993) (plurality opinion). But anecdotal evidence suggests that nothing of that sort is going on. One of our own leading cases on punitive damages, with a $4 million verdict by an Alabama jury, noted that a second Alabama case with strikingly similar facts produced “a comparable amount of compensatory damages” but “no punitive damages at all.” See Gore, 517 U. S., at 565, n. 8. As the Supreme Court of Alabama candidly explained, “the disparity between the two jury verdicts … [w]as a reflection of the inherent uncertainty of the trial process.” BMW of North America, Inc. v. Gore, 646 So. 2d 619, 626 (1994) (per curiam). We are aware of no scholarly work pointing to consistency across punitive awards in cases involving similar claims and circumstances.[Footnote 17] E The Court’s response to outlier punitive damages awards has thus far been confined by claims at the constitutional level, and our cases have announced due process standards that every award must pass. See, e.g., State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 425 (2003); Gore, 517 U. S., at 574–575. Although “we have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula,” id., at 582, we have determined that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,” State Farm, 538 U. S., at 425; “[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee,” ibid. Today’s enquiry differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process; we are examining the verdict in the exercise of federal maritime common law authority, which precedes and should obviate any application of the constitutional standard. Our due process cases, on the contrary, have all involved awards subject in the first instance to state law. See, e.g., id., at 414 (fraud and intentional infliction of emotional distress under Utah law); Gore, supra, at 563, and n. 3 (fraud under Alabama law); TXO, supra, at 452 (plurality opinion) (slander of title under West Virginia law); Haslip, 499 U. S., at 7 (fraud under Alabama law). These, as state-law cases, could provide no occasion to consider a “common-law standard of excessiveness,” Browning-Ferris Industries, 492 U. S., at 279, and the only matter of federal law within our appellate authority was the constitutional due process issue. Our review of punitive damages today, then, considers not their intersection with the Constitution, but the desirability of regulating them as a common law remedy for which responsibility lies with this Court as a source of judge-made law in the absence of statute. Whatever may be the constitutional significance of the unpredictability of high punitive awards, this feature of happenstance is in tension with the function of the awards as punitive, just because of the implication of unfairness that an eccentrically high punitive verdict carries in a system whose commonly held notion of law rests on a sense of fairness in dealing with one another. Thus, a penalty should be reasonably predictable in its severity, so that even Justice Holmes’s “bad man” can look ahead with some ability to know what the stakes are in choosing one course of action or another. See The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897). And when the bad man’s counterparts turn up from time to time, the penalty scheme they face ought to threaten them with a fair probability of suffering in like degree when they wreak like damage. Cf. Koon v. United States, 518 U. S. 81, 113 (1996) (noting the need “to reduce unjustified disparities” in criminal sentencing “and so reach toward the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice”). The common sense of justice would surely bar penalties that reasonable people would think excessive for the harm caused in the circumstances. F 1 With that aim ourselves, we have three basic approaches to consider, one verbal and two quantitative. As mentioned before, a number of state courts have settled on criteria for judicial review of punitive-damages awards that go well beyond traditional “shock the conscience” or “passion and prejudice” tests. Maryland, for example, has set forth a nonexclusive list of nine review factors under state common law that include “degree of heinousness,” “the deterrence value of [the award],” and “[w]hether [the punitive award] bears a reasonable relationship to the compensatory damages awarded.” Bowden v. Caldor, Inc., 350 Md. 4, 25–39, 710 A. 2d 267, 277–284 (1998). Alabama has seven general criteria, such as “actual or likely harm [from the defendant’s conduct],” “degree of reprehensibility,” and “[i]f the wrongful conduct was profitable to the defendant.” Green Oil Co. v. Hornsby, 539 So. 2d 218, 223–224 (1989) (internal quotation marks omitted). But see McClain v. Metabolife Int’l, Inc., 259 F. Supp. 2d 1225, 1236 (ND Ala. 2003) (noting but not deciding claim that post-trial review under Green Oil “is unconstitutionally vague and inadequate”). These judicial review criteria are brought to bear after juries render verdicts under instructions offering, at best, guidance no more specific for reaching an appropriate penalty. In Maryland, for example, which allows punitive damages for intentional torts and conduct characterized by “actual malice,” U. S. Gypsum Co. v. Mayor and City Council of Baltimore, 336 Md. 145, 185, 647 A. 2d 405, 424–425 (1994), juries may be instructed that “An award for punitive damages should be: “(1) In an amount that will deter the defendant and others from similar conduct. “(2) Proportionate to the wrongfulness of the defendant’s conduct and the defendant’s ability to pay. “(3) But not designed to bankrupt or financially destroy a defendant.” Md. Pattern Jury Instr., Civil, No. 10:13 (4th ed. 2007). In Alabama, juries are instructed to fix an amount after considering “the character and degree of the wrong as shown by the evidence in the case, and the necessity of preventing similar wrongs.” 1 Ala. Pattern Jury Instr., Civil, No. §23.21 (Supp. 2007). These examples leave us skeptical that verbal formulations, superimposed on general jury instructions, are the best insurance against unpredictable outliers. Instructions can go just so far in promoting systemic consistency when awards are not tied to specifically proven items of damage (the cost of medical treatment, say), and although judges in the States that take this approach may well produce just results by dint of valiant effort, our experience with attempts to produce consistency in the analogous business of criminal sentencing leaves us doubtful that anything but a quantified approach will work. A glance at the experience there will explain our skepticism. The points of similarity are obvious. “[P]unitive damages advance the interests of punishment and deterrence, which are also among the interests advanced by the criminal law.” Browning-Ferris Industries, 492 U. S., at 275.[Footnote 18] See also 1977 Restatement §908, Comment a, at 464 (purposes of punitive damages are “the same” as “that of a fine imposed after a conviction of a crime”); 18 U. S. C. §3553(a)(2) (requiring sentencing courts to consider, inter alia, “the need for the sentence imposed … to provide just punishment for the offense” and “to afford adequate deterrence to criminal conduct”); United States Sentencing Commission, Guidelines Manual §1A1.1, comment. (Nov. 2007). It is instructive, then, that in the last quarter century federal sentencing rejected an “indeterminate” system, with relatively unguided discretion to sentence within a wide range, under which “similarly situated offenders were sentenced [to], and did actually serve, widely disparate sentences.”[Footnote 19] Instead it became a system of detailed guidelines tied to exactly quantified sentencing results, under the authority of the Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq. (2000 ed. and Supp. V). The importance of this for us is that in the old federal sentencing system of general standards the cohort of even the most seasoned judicial penalty-givers defied consistency. Judges and defendants alike were “[l]eft at large, wandering in deserts of uncharted discretion,” M. Frankel, Criminal Sentences: Law Without Order 7–8 (1973), which is very much the position of those imposing punitive damages today, be they judges or juries, except that they lack even a statutory maximum; their only restraint beyond a core sense of fairness is the due process limit. This federal criminal law development, with its many state parallels, strongly suggests that as long “as there are no punitive-damages guidelines, corresponding to the federal and state sentencing guidelines, it is inevitable that the specific amount of punitive damages awarded whether by a judge or by a jury will be arbitrary.” Mathias v. Accor Economy Lodging, Inc., 347 F. 3d 672, 678 (CA7 2003). 2 This is why our better judgment is that eliminating unpredictable outlying punitive awards by more rigorous standards than the constitutional limit will probably have to take the form adopted in those States that have looked to the criminal-law pattern of quantified limits. One option would be to follow the States that set a hard dollar cap on punitive damages, see supra, at 22, a course that arguably would come closest to the criminal law, rather like setting a maximum term of years. The trouble is, though, that there is no “standard” tort or contract injury, making it difficult to settle upon a particular dollar figure as appropriate across the board. And of course a judicial selection of a dollar cap would carry a serious drawback; a legislature can pick a figure, index it for inflation, and revisit its provision whenever there seems to be a need for further tinkering, but a court cannot say when an issue will show up on the docket again. See, e.g., Jones & Laughlin Steel Corp. v. Pfeifer, 462 U. S. 523, 546–547 (1983) (declining to adopt a fixed formula to account for inflation in discounting future wages to present value, in light of the unpredictability of inflation rates and variation among lost-earnings cases). The more promising alternative is to leave the effects of inflation to the jury or judge who assesses the value of actual loss, by pegging punitive to compensatory damages using a ratio or maximum multiple. See, e.g., 2 ALI Enterprise Responsibility for Personal Injury: Reporters’ Study 258 (1991) (hereinafter ALI Reporters’ Study) (“[T]he compensatory award in a successful case should be the starting point in calculating the punitive award”); ABA, Report of Special Comm. on Punitive Damages, Section of Litigation, Punitive Damages: A Constructive Examination 64–66 (1986) (recommending a presumptive punitive-to-compensatory damages ratio). As the earlier canvass of state experience showed, this is the model many States have adopted, see supra, at 22, and n. 12, and Congress has passed analogous legislation from time to time, as for example in providing treble damages in antitrust, racketeering, patent, and trademark actions, see 15 U. S. C. §§15, 1117 (2000 ed. and Supp. V); 18 U. S. C. §1964(c); 35 U. S. C. §284.[Footnote 20] And of course the potential relevance of the ratio between compensatory and punitive damages is indisputable, being a central feature in our due process analysis. See, e.g., State Farm, 538 U. S., at 425; Gore, 517 U. S., at 580. Still, some will murmur that this smacks too much of policy and too little of principle. Cf. Moviecolor Ltd. v. Eastman Kodak Co., 288 F. 2d 80, 83 (CA2 1961). But the answer rests on the fact that we are acting here in the position of a common law court of last review, faced with a perceived defect in a common law remedy. Traditionally, courts have accepted primary responsibility for reviewing punitive damages and thus for their evolution, and if, in the absence of legislation, judicially derived standards leave the door open to outlier punitive-damages awards, it is hard to see how the judiciary can wash its hands of a problem it created, simply by calling quantified standards legislative. See State Farm, supra, at 438 (Ginsburg, J., dissenting) (“In a legislative scheme or a state high court’s design to cap punitive damages, the handiwork in setting single-digit and 1-to-1 benchmarks could hardly be questioned”); 2 ALI Reporters’ Study 257 (recommending adoption of ratio, “probably legislatively, although possibly judicially”). History certainly is no support for the notion that judges cannot use numbers. The 21-year period in the rule against perpetuities was a judicial innovation, see, e.g., Cadell v. Palmer, 1 Clark & Finnelly 372, 6 Eng. Rep. 956, 963 (H. L. 1833), and so were exact limitations periods for civil actions, sometimes borrowing from statutes, see C. Preston & G. Newsom, Limitation of Actions 241–242 (2d ed. 1943), but often without any statutory account to draw on, see, e.g., 1 H. Wood, Limitations of Actions §1, p. 4 (4th ed. 1916). For more examples, see 1 W. Blackstone, Commentaries on the Laws of England 451 (1765) (listing other common law age cut-offs with no apparent statutory basis). And of course, adopting an admiralty-law ratio is no less judicial than picking one as an outer limit of constitutionality for punitive awards. See State Farm, supra, at 425.[Footnote 21] Although the legal landscape is well populated with examples of ratios and multipliers expressing policies of retribution and deterrence, most of them suffer from features that stand in the way of borrowing them as paradigms of reasonable limitations suited for application to this case. While a slim majority of the States with a ratio have adopted 3:1, others see fit to apply a lower one, see, e.g., Colo. Rev. Stat. Ann. §13–21–102(1)(a) (2007) (1:1); Ohio Rev. Code Ann. §2315.21(D)(2)(a) (Lexis 2005) (2:1), and a few have gone higher, see, e.g., Mo. Ann. Stat. §510.265(1) (Supp. 2008) (5:1). Judgments may differ about the weight to be given to the slight majority of 3:1 States, but one feature of the 3:1 schemes dissuades us from selecting it here. With a few statutory exceptions, generally for intentional infliction of physical injury or other harm, see, e.g, Ala. Code §6–11–21(j) (2005); Ark. Code Ann. §16–55–208(b) (2005), the States with 3:1 ratios apply them across the board (as do other States using different fixed multipliers). That is, the upper limit is not directed to cases like this one, where the tortious action was worse than negligent but less than malicious,[Footnote 22] exposing the tortfeasor to certain regulatory sanctions and inevitable damage actions;[Footnote 23] the 3:1 ratio in these States also applies to awards in quite different cases involving some of the most egregious conduct, including malicious behavior and dangerous activity carried on for the purpose of increasing a tortfeasor’s financial gain.[Footnote 24] We confront, instead, a case of reckless action, profitless to the tortfeasor, resulting in substantial recovery for substantial injury. Thus, a legislative judgment that 3:1 is a reasonable limit overall is not a judgment that 3:1 is a reasonable limit in this particular type of case. For somewhat different reasons, the pertinence of the 2:1 ratio adopted by treble-damages statutes (offering compensatory damages plus a bounty of double that amount) is open to question. Federal treble-damages statutes govern areas far afield from maritime concerns (not to mention each other);[Footnote 25] the relevance of the governing rules in patent or trademark cases, say, is doubtful at best. And in some instances, we know that the considerations that went into making a rule have no application here. We know, for example, that Congress devised the treble damages remedy for private antitrust actions with an eye to supplementing official enforcement by inducing private litigation, which might otherwise have been too rare if nothing but compensatory damages were available at the end of the day. See, e.g., Reiter, 442 U. S., at 344. That concern has no traction here, in this case of staggering damage inevitably provoking governmental enforcers to indict and any number of private parties to sue. To take another example, although 18 U. S. C. §3571(d) provides for a criminal penalty of up to twice a crime victim’s loss, this penalty is an alternative to other specific fine amounts which courts may impose at their option, see §§3571(a)–(c), a fact that makes us wary of reading too much into Congress’s choice of ratio in one provision. State environmental treble-damages schemes offer little more support: for one thing, insofar as some appear to punish even negligence, see, e.g., Mass. Gen. Laws, ch. 130, §27, while others target only willful conduct, see, e.g., Del. Code Ann., Tit. 25, §1401 (1989), some undershoot and others may overshoot the target here. For another, while some States have chosen treble damages, others punish environmental harms at other multiples. See, e.g., N. H. Rev. Stat. Ann. §146–A:10 (2005) (damages of one-and-a-half times the harm caused to private property by oil discharge); Minn. Stat. Ann. §115A.99 (2005) (civil penalty of 2 to 5 times the costs of removing unlawful solid waste). All in all, the legislative signposts do not point the way clearly to 2:1 as a sound indication of a reasonable limit. 3 There is better evidence of an accepted limit of reasonable civil penalty, however, in several studies mentioned before, showing the median ratio of punitive to compensatory verdicts, reflecting what juries and judges have considered reasonable across many hundreds of punitive awards. See supra, at 25–26, and n. 14. We think it is fair to assume that the greater share of the verdicts studied in these comprehensive collections reflect reasonable judgments about the economic penalties appropriate in their particular cases. These studies cover cases of the most as well as the least blameworthy conduct triggering punitive liability, from malice and avarice, down to recklessness, and even gross negligence in some jurisdictions. The data put the median ratio for the entire gamut of circumstances at less than 1:1, see supra, at 25–26, and n. 14, meaning that the compensatory award exceeds the punitive award in most cases. In a well-functioning system, we would expect that awards at the median or lower would roughly express jurors’ sense of reasonable penalties in cases with no earmarks of exceptional blameworthiness within the punishable spectrum (cases like this one, without intentional or malicious conduct, and without behavior driven primarily by desire for gain, for example) and cases (again like this one) without the modest economic harm or odds of detection that have opened the door to higher awards. It also seems fair to suppose that most of the unpredictable outlier cases that call the fairness of the system into question are above the median; in theory a factfinder’s deliberation could go awry to produce a very low ratio, but we have no basis to assume that such a case would be more than a sport, and the cases with serious constitutional issues coming to us have naturally been on the high side, see, e.g., State Farm, 538 U. S., at 425 (ratio of 145:1); Gore, 517 U. S., at 582 (ratio of 500:1). On these assumptions, a median ratio of punitive to compensatory damages of about 0.65:1[Footnote 26] probably marks the line near which cases like this one largely should be grouped. Accordingly, given the need to protect against the possibility (and the disruptive cost to the legal system) of awards that are unpredictable and unnecessary, either for deterrence or for measured retribution, we consider that a 1:1 ratio, which is above the median award, is a fair upper limit in such maritime cases.[Footnote 27] The provision of the CWA respecting daily fines confirms our judgment that anything greater would be excessive here and in cases of this type. Congress set criminal penalties of up to $25,000 per day for negligent violations of pollution restrictions, and up to $50,000 per day for knowing ones. 33 U. S. C. §§1319(c)(1), (2). Discretion to double the penalty for knowing action compares to discretion to double the civil liability on conduct going beyond negligence and meriting punitive treatment. And our explanation of the constitutional upper limit confirms that the 1:1 ratio is not too low. In State Farm, we said that a single-digit maximum is appropriate in all but the most exceptional of cases, and “[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” 538 U. S., at 425.[Footnote 28] V Applying this standard to the present case, we take for granted the District Court’s calculation of the total relevant compensatory damages at $507.5 million. See In re Exxon Valdez, 236 F. Supp. 2d 1043, 1063 (D. Alaska 2002). A punitive-to-compensatory ratio of 1:1 thus yields maximum punitive damages in that amount. We therefore vacate the judgment and remand the case for the Court of Appeals to remit the punitive damages award accordingly. It is so ordered. Justice Alito took no part in the consideration or decision of this case. Footnote 1 As it turned out, the tanker survived the accident and remained in Exxon’s fleet, which it subsequently transferred to a wholly owned subsidiary, SeaRiver Maritime, Inc. The Valdez “was renamed several times, finally to the SeaRiver Mediterranean, [and] carried oil between the Persian Gulf and Japan, Singapore, and Australia for 12 years. … In 2002, the ship was pulled from service and ‘laid up’ off a foreign port (just where the owners won’t say) and prepared for retirement, although, according to some reports, the vessel continues in service under a foreign flag.” Exxon Valdez Spill Anniversary Marked, 30 Oil Spill Intelligence Report 2 (Mar. 29, 2007). Footnote 2 The jury was not asked to consider the possibility of any degree of fault beyond the range of reckless conduct. The record sent up to us shows that some thought was given to a trial plan that would have authorized jury findings as to greater degrees of culpability, see App. 164, but that plan was not adopted, whatever the reason; Baker does not argue this was error. Footnote 3 Baker emphasizes that the Phase I jury instructions also allowed the jury to find Exxon independently reckless, and that the evidence for fixing Exxon’s punitive liability at Phase III revolved around the recklessness of company officials in supervising Hazelwood and enforcing Exxon’s alcohol policies. Thus, Baker argues, it is entirely possible that the jury found Exxon reckless in its own right, and in no way predicated its liability for punitive damages on Exxon’s responsibility for Hazelwood’s conduct. Brief for Respondents 36–39. The fact remains, however, that the jury was not required to state the basis of Exxon’s recklessness, and the basis for the finding could have been Exxon’s own recklessness or just Hazelwood’s. Any error in instructing on the latter ground cannot be overlooked, because “when it is impossible to know, in view of the general verdict returned whether the jury imposed liability on a permissible or an impermissible ground, the judgment must be reversed and the case remanded.” Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6, 11 (1970) (internal quotation marks omitted). Footnote 4 Compare Protectus Alpha Nav. Co. v. North Pacific Grain Growers, Inc., 767 F. 2d 1379, 1386 (CA9 1985) (adopting Restatement (Second) of Torts rule), with CEH, Inc. v. F/V Seafarer, 70 F. 3d 694, 705 (CA1 1995); In re P & E Boat Rentals, Inc., 872 F. 2d 642, 652 (CA5 1989); United States Steel Corp. v. Fuhrman, 407 F. 2d 1143, 1148 (CA6 1969). Footnote 5 Most of the rules under which Exxon sought relief are inapplicable on their face. See Fed. Rules Civ. Proc. 49(a), 56(b), (d), and 58(2). Rules 50 and 59 are less inapt: they allow, respectively, entry of judgment as a matter of law and alteration or amendment of the judgment. (At oral argument, counsel for Exxon ultimately characterized the motion as one under Rule 50. Tr. of Oral Arg. 25.) But to say that Rules 50 and 59 are less inapt than the other Rules is a long way from saying they are apt. A motion under Rule 50(b) is not allowed unless the movant sought relief on similar grounds under Rule 50(a) before the case was submitted to the jury. See Rule 50(b); see also, e.g., Zachar v. Lee, 363 F. 3d 70, 73–74 (CA1 2004); 9B C. Wright & A. Miller, Federal Practice and Procedure §2537, pp. 603–604 (3d ed. 2008). Rule 59(e) permits a court to alter or amend a judgment, but it “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” 11 C. Wright & A. Miller, Federal Practice and Procedure §2810.1, pp. 127–128 (2d ed. 1995) (footnotes omitted). Where Exxon has been unable to demonstrate that any rule supported the motion, we need not choose the best of the worst, and risk implying that this last-minute motion was appropriate under any rule. Suffice it to say that, whatever type of motion it was supposed to be, it was very, very late. Footnote 6 We do have to say, though, that the Court of Appeals gave short shrift to the District Court’s commendable management of this gargantuan litigation, and if the case turned on the propriety of the Circuit’s decision to reach the preemption issue we would take up the claim that it exceeded its discretion. Instead, we will only say that to the extent the Ninth Circuit implied that the unusual circumstances of this case called for an exception to regular practice, we think the record points the other way. Of course the Court of Appeals was correct that the case was complex and significant, so much so, in fact, that the District Court was fairly required to divide it into four phases, to oversee a punitive-damages class of 32,000 people, and to manage a motions industry that threatened to halt progress completely. But the complexity of a case does not eliminate the value of waiver and forfeiture rules, which ensure that parties can determine when an issue is out of the case, and that litigation remains, to the extent possible, an orderly progression. “The reason for the rules is not that litigation is a game, like golf, with arbitrary rules to test the skill of the players. Rather, litigation is a ‘winnowing process,’ and the procedures for preserving or waiving issues are part of the machinery by which courts narrow what remains to be decided.” Poliquin v. Garden Way, Inc., 989 F. 2d 527, 531 (CA1 1993) (Boudin, J.) (citation omitted). The District Court’s sensible efforts to impose order upon the issues in play and the progress of the trial deserve our respect. Footnote 7 In this respect, this case differs from two invoked by Exxon, Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981), and Milwaukee v. Illinois, 451 U. S. 304 (1981), where plaintiffs’ common law nuisance claims amounted to arguments for effluent-discharge standards different from those provided by the CWA. Here, Baker’s private claims for economic injury do not threaten similar interference with federal regulatory goals with respect to “water,” “shorelines,” or “natural resources.” Footnote 8 Indeed, at least one 19th-century treatise writer asserted that there was “no doctrine of authentically ‘punitive’ damages” and that “judgments that ostensibly included punitive damages [were] in reality no more than full compensation.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 25 (1991) (Scalia, J., concurring in judgment) (citing 2 S. Greenleaf, Law of Evidence 235, n. 2 (13th ed. 1876)). “This view,” however, “was not widely shared.” Haslip, supra, at 25 (Scalia, J., concurring in judgment) (citing other prominent 19th-century treatises). Whatever the actual importance of the subterfuge for compensation may have been, it declined. Footnote 9 See, e.g., Moskovitz v. Mount Sinai Medical Center, 69 Ohio St. 3d 638, 651, 635 N. E. 2d 331, 343 (1994) (“The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct”); Hamilton Development Co. v. Broad Rock Club, Inc., 248 Va. 40, 45, 445 S. E. 2d 140, 143 (1994) (same); Loitz v. Remington Arms Co., 138 Ill. 2d 404, 414, 563 N. E. 2d 397, 401 (1990) (same); Green Oil Co. v. Hornsby, 539 So. 2d 218, 222 (Ala. 1989) (same); Masaki v. General Motors Corp., 71 Haw. 1, 6, 780 P. 2d 566, 570 (1989) (same); see also Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 432 (2001) (punitive damages are “intended to punish the defendant and to deter future wrongdoing”); State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 416 (2003) (“[P]unitive damages … are aimed at deterrence and retribution”); 4 Restatement §908, Comment a. Footnote 10 These standards are from the torts context; different standards apply to other causes of action. Footnote 11 A like procedure was followed in this case, without objection. Footnote 12 See, e.g., Mo. Rev. Stat. Ann. §510.265(1) (Vernon Supp. 2008) (greater of 5:1 or $500,000 in most cases); Ala. Code §§6–11–21(a), (d) (2005) (greater of 3:1 or $1.5 million in most personal injury suits, and 3:1 or $500,000 in most other actions); N. D. Cent. Code Ann. §32–03.2–11(4) (Supp. 2007) (greater of 2:1 or $250,000); Colo. Rev. Stat. Ann. §13–21–102(1)(a) (2007) (1:1). Oklahoma has a graduated scheme, with the limit on the punitive award turning on the nature of the defendant’s conduct. See Okla. Stat., Tit. 23, §9.1(B) (West 2001) (greater of 1:1 or $100,000 in cases involving “reckless disregard”); §9.1(C) (greater of 2:1, $500,000, or the financial benefit derived by the defendant, in cases of intentional and malicious conduct); §9.1(D) (no limit where the conduct is intentional, malicious, and life threatening). Footnote 13 See, e.g., RAND Institute for Civil Justice, D. Hensler & E. Moller, Trends in Punitive Damages, table 2 (Mar. 1995) (finding an increase in median awards between the early 1980s and the early 1990s in San Francisco and Cook Counties); Moller, Pace, & Carroll, Punitive Damages in Financial Injury Jury Verdicts, 28 J. Legal Studies 283, 307 (1999) (hereinafter Financial Injury Jury Verdicts) (studying jury verdicts in “Financial Injury” cases in six States and Cook County, Illinois, and finding a marked increase in the median award between the late 1980s and the early 1990s); M. Peterson, S. Sarma, & M. Shanley, Punitive Damages: Empirical Findings 15 (RAND Institute for Civil Justice 1987) (hereinafter Punitive Damages: Empirical Findings) (finding that the median punitive award increased nearly 4 times in San Francisco County between the early 1960s and the early 1980s, and 43 times in Cook County over the same period). But see T. Eisenberg et al., Juries, Judges, and Punitive Damages: Empirical Analyses Using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data, 3 J. of Empirical Legal Studies 263, 278 (2006) (hereinafter Juries, Judges, and Punitive Damages) (analyzing Bureau of Justice Statistics data from 1992, 1996, and 2001, and concluding that “[n]o statistically significant variation exists in the inflation-adjusted punitive award level over the three time periods”); Dept. of Justice, Bureau of Justice Statistics, T. Cohen, Punitive Damage Awards in Large Counties, 2001, p. 8 (Mar. 2005) (hereinafter Cohen) (compiling data from the Nation’s 75 most populous counties and finding that the median punitive damage award in civil jury trials decreased between 1992 and 2001). Footnote 14 See, e.g., Juries, Judges, and Punitive Damages 269 (reporting median ratios of 0.62:1 in jury trials and 0.66:1 in bench trials using the Bureau of Justice Statistics data from 1992, 1996, and 2001); Vidmar & Rose, Punitive Damages by Juries in Florida, 38 Harv. J. Legis. 487, 492 (2001) (studying civil cases in Florida state courts between 1989 and 1998 and finding a median ratio of 0.67:1). But see Financial Injury Jury Verdicts 307 (finding a median ratio of 1.4:1 in “financial injury” cases in the late 1980s and early 1990s). Footnote 15 See, e.g., Cohen 8 (compiling data from the Nation’s 75 most populous counties, and finding that in jury trials where the plaintiff prevailed, the percentage of cases involving punitive awards was 6.1% in 1992 and 5.6% in 2001); Financial Injury Jury Verdicts 307 (finding a statistically significant decrease in the percentage of verdicts in “financial injury” cases that include a punitive damage award, from 15.8% in the early 1980s to 12.7% in the early 1990s). But see Punitive Damages: Empirical Findings 9 (finding an increase in the percentage of civil trials resulting in punitive damage awards in San Francisco and Cook Counties between 1960 and 1984). One might posit that ill effects of punitive damages are clearest not in actual awards but in the shadow that the punitive regime casts on settlement negotiations and other litigation decisions. See, e.g., Financial Injury Jury Verdicts 287; Polinsky, Are Punitive Damages Really Insignificant, Predictable, and Rational? 26 J. Legal Studies 663, 664–671 (1997). But here again the data have not established a clear correlation. See, e.g., Eaton, Mustard, & Talarico, The Effects of Seeking Punitive Damages on the Processing of Tort Claims, 34 J. Legal Studies 343, 357, 353–354, 365 (2005) (studying data from six Georgia counties and concluding that “the decision to seek punitive damages has no statistically significant impact” on “whether a case that was disposed was done so by trial or by some other procedure, including settlement,” or “whether a case that was disposed by means other than a trial was more likely to have been settled”); Kritzer & Zemans, The Shadow of Punitives, 1998 Wis. L. Rev. 157, 160 (1998) (noting the theory that punitive damages cast a large shadow over settlement negotiations, but finding that “with perhaps one exception, what little systematic evidence we could find does not support the notion” (emphasis deleted)). Footnote 16 This study examined “the most representative sample of state court trials in the United States,” involving “tort, contract, and property cases disposed of by trial in fiscal year 1991–1992 and then calendar years 1996 and 2001. The three separate data sets cover state courts of general jurisdiction in a random sample of 46 of the 75 most populous counties in the United States.” Juries, Judges, and Punitive Damages 267. The information was “gathered directly” from state-court clerks’ offices and the study did “not rely on litigants or third parties to report.” Ibid. Footnote 17 The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous “mock juries,” where different “jurors” are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff’s Requests and Plaintiff’s Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L. J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it. Footnote 18 This observation is not at odds with the holding in Browning-Ferris, that the Excessive Fines Clause of the Eighth Amendment does not apply to punitive damages. See Browning-Ferris, 492 U. S., at 275. That conclusion did not reject the punitive nature of the damages, see ibid., but rested entirely upon our conviction that “the concerns that animate the Eighth Amendment” were about “plac[ing] limits on the steps a government may take against an individual,” ibid. Thus the Clause “does not constrain an award of money damages in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded.” Id., at 264. We noted the similarities of purpose between criminal penalties and punitive damages and distinguished the two on the basis of their differing levels of state involvement. See id., at 275. Footnote 19 Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. Crim. L. & C. 883, 895–899 (1990) (citing studies and congressional hearings). Footnote 20 There are State counterparts of these federal statutes. See, e.g., Conn. Gen. Stat. §52–560 (2007) (cutting or destroying a tree intended for use as a Christmas tree punishable by a payment to the injured party of five times the tree’s value); Mass. Gen. Laws, ch. 91, §59A (West 2006) (discharging crude oil into a lake, river, tidal water, or flats subjects a defendant to double damages in tort). Footnote 21 To the extent that Justice Stevens suggests that the very subject of remedies should be treated as congressional in light of the number of statutes dealing with remedies, see post, at 1–4 (opinion concurring in part and dissenting in part), we think modern-day maritime cases are to the contrary and support judicial action to modify a common law landscape largely of our own making. The character of maritime law as a mixture of statutes and judicial standards, “an amalgam of traditional common-law rules, modifications of those rules, and newly created rules,” East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 865 (1986), accounts for the large part we have taken in working out the governing maritime tort principles. See, e.g., ibid. (“recognizing products liability . . . as part of the general maritime law”); American Export Lines, Inc. v. Alvez, 446 U. S. 274 (1980) (recognizing cause of action for loss of consortium); Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970) (recognizing cause of action for wrongful death). And for the very reason that our exercise of maritime jurisdiction has reached to creating new causes of action on more than one occasion, it follows that we have a free hand in dealing with an issue that is “entirely a remedial matter.” Id., at 382. The general observation we made in United States v. Reliable Transfer Co., 421 U. S. 397, 409 (1975), when we abrogated the admiralty rule of divided damages in favor of proportional liability, is to the point here. It is urged “that the creation of a new rule of damages in maritime collision cases is a task for Congress and not for this Court. But the Judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime, and Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law” (internal quotation marks and footnote omitted). See also Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830 (1996) (holding that proportional-liability rule applies only to defendants proximately causing an injury); McDermott, Inc. v. AmClyde, 511 U. S. 202 (1994) (adopting proportionate-fault rule for calculation of nonsettling maritime tort defendants’ compensatory liability). Indeed, the compensatory remedy sought in this case is itself entirely a judicial creation. The common law traditionally did not compensate purely economic harms, unaccompanied by injury to person or property. See K. Abraham, Forms and Functions of Tort Law 247–248 (3d ed. 2007); see, e.g., Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449 (1925) (imposing rule in maritime context). But “[t]he courts have … occasionally created exceptions to the rule. Perhaps the most noteworthy involve cases in which there has been natural-resource damage for which no party seems to have a cause of action.” Abraham, supra, at 249 (discussing Union Oil Co. v. Oppen, 501 F. 2d 558 (CA9 1974) (recognizing exception for commercial fishermen)). We raise the point not to express agreement or disagreement with the Ninth Circuit rule but to illustrate the entirely judge-made nature of the landscape we are surveying. To be sure, “Congress retains superior authority in these matters,” and “[i]n this era, an admiralty court should look primarily to these legislative enactments for policy guidance.” Miles v. Apex Marine Corp., 498 U. S. 19, 27 (1990). But we may not slough off our responsibilities for common law remedies because Congress has not made a first move, and the absence of federal legislation constraining punitive damages does not imply a congressional decision that there should be no quantified rule, cf. Rapanos v. United States, 547 U. S. 715, 749 (2006) (plurality opinion) (noting the Court’s “oft-expressed skepticism towards reading the tea leaves of congressional inaction”). Where there is a need for a new remedial maritime rule, past precedent argues for our setting a judicially derived standard, subject of course to congressional revision. See, e.g., Reliable Transfer, supra, at 409. Footnote 22 Although the jury heard evidence that Exxon may have felt constrained not to give Hazelwood a shoreside assignment because of a concern that such a course might open it to liabilities in personnel litigation the employee might initiate, see, e.g., App. F to Pet. for Cert. 256a, such a consideration, if indeed it existed, hardly constitutes action taken with a specific purpose to cause harm at the expense of an established duty. Footnote 23 We thus treat this case categorically as one of recklessness, for that was the jury’s finding. But by making a point of its contrast with cases falling within categories of even greater fault we do not mean to suggest that Exxon’s and Hazelwood’s failings were less than reprehensible. Footnote 24 Two of the States with 3:1 ratios do provide for slightly larger awards in actions involving this type of strategic financial wrongdoing, but the exceptions seem to apply to only a subset of those cases. See Alaska Stat. §09.17.020(g) (2006) (where the defendant’s conduct was motivated by financial gain and the adverse consequences of the conduct were actually known by the defendant or the person responsible for making policy decisions on behalf of the defendant, the normal limit is replaced by the greater of four times the compensatory damages, four times the aggregate financial gain the defendant received as a result of its misconduct, or $7 million); Fla. Stat. §§768.73(1)(b), (c) (2007) (normal limit replaced by greater of 4:1 or $2 million where defendant’s wrongful conduct was motivated solely by unreasonable financial gain and the unreasonably dangerous nature of the conduct, together with the high likelihood of injury, was actually known by the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant). Footnote 25 See, e.g., 15 U. S. C. §15 (antitrust); 18 U. S. C. §1964 (racketeering); 35 U. S. C. §284 (patent); 15 U. S. C. §1117 (trademark) (2000 ed. and Supp. V); 7 U. S. C. §2564 (plant variety protections); 12 U. S. C. §2607 (real estate settlement antikickback provision); 15 U. S. C. §1693f (consumer credit protection). Footnote 26 See supra, at 25, n. 14, for the spread among studies. Footnote 27 The reasons for this conclusion answer Justice Stevens’s suggestion, post, at 7–8, that there is an adequate restraint in appellate abuse-of-discretion review of a trial judge’s own review of a punitive jury award (or of a judge’s own award in nonjury cases). We cannot see much promise of a practical solution to the outlier problem in this possibility. Justice Stevens would find no abuse of discretion in allowing the $2.5 billion balance of the jury’s punitive verdict here, and yet that is about five times the size of the award that jury practice and our judgment would signal as reasonable in a case of this sort. The dissent also suggests that maritime tort law needs a quantified limit on punitive awards less than tort law generally because punitives may mitigate maritime law’s less generous scheme of compensatory damages. Post, at 4–6. But the instructions in this case did not allow the jury to set punitives on the basis of any such consideration, see Jury Instruction No. 21, App. to Brief in Opposition 12a (“The purposes for which punitive damages are awarded are: (1) to punish a wrongdoer for extraordinary misconduct; and (2) to warn defendants and others and deter them from doing the same”), and the size of the underlying compensatory damages does not bespeak economic inadequacy; the case, then, does not support an argument that maritime compensatory awards need supplementing. And this Court has long held that “[p]unitive 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.” Newport v. Fact Concerts, Inc., 453 U. S. 247, 266–267 (1981); see supra, at 18–19. Indeed, any argument for more generous punitive damages in maritime cases would call into question the maritime applicability of the constitutional limit on punitive damages as now understood, for we have tied that limit to a conception of punitive damages awarded entirely for a punitive, not quasi-compensatory, purpose. See, e.g., Philip Morris USA v. Williams, 549 U. S. 346, 352 (2007) (“This Court has long made clear that ‘[p]unitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition’ ” (quoting Gore, 517 U. S., at 568)); State Farm, 538 U. S., at 416 (“[P]unitive damages … are aimed at deterrence and retribution”); Cooper Industries, 532 U. S., at 432 (“[C]ompensatory damages and punitive damages … serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered … . The latter … operate as ‘private fines’ intended to punish the defendant and to deter future wrongdoing”). Footnote 28 The criterion of “substantial” takes into account the role of punitive damages to induce legal action when pure compensation may not be enough to encourage suit, a concern addressed by the opportunity for a class action when large numbers of potential plaintiffs are involved: in such cases, individual awards are not the touchstone, for it is the class option that facilitates suit, and a class recovery of $500 million is substantial. In this case, then, the constitutional outer limit may well be 1:1.
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552.US.389
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The Age Discrimination in Employment Act of 1967 (ADEA) requires that “[n]o civil action … be commenced … until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission” (EEOC), 29 U. S. C. §626(d), but does not define the term “charge.” After petitioner delivery service (FedEx) initiated programs tying its couriers’ compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 “Intake Questionnaire” and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent’s action, contending she had not filed the “charge” required by §626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx’s motion. The Second Circuit reversed. Held: 1. In addition to the information required by the implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a “charge” under the ADEA it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee. Pp. 3–13. (a) There is little dispute that the EEOC’s regulations—so far as they go—are reasonable constructions of the statutory term “charge” and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–845. However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR §1626.3 says: “charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in acts in violation of the Act.” Section 1626.8(a) identifies information a “charge should contain,” including: the employee’s and employer’s names, addresses, and phone numbers; an allegation that the employee was the victim of age discrimination; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. Section 1626.8(b), however, seems to qualify these requirements by stating that a charge is “sufficient” if it meets the requirements of §1626.6—i.e., if it is “in writing and … name[s] the prospective respondent and … generally allege[s] the discriminatory act(s).” That the meaning of charge remains unclear, even with the regulations, is evidenced by the differing positions of the parties and the Courts of Appeals on the matter. Pp. 3–5. (b) Just as this Court defers to reasonable statutory interpretations, an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is “ ‘ plainly erroneous or inconsistent with the regulation,’ ” Auer v. Robbins, 519 U. S. 452, 461. The Court accords such deference to the EEOC’s position that its regulations identify certain requirements for a charge but do not provide an exhaustive definition. It follows that a document meeting §1626.6’s requirements is not a charge in every instance. The language in §§1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. While the regulations’ structure is less than clear, the relevant provisions are grouped under the title, “Procedures—Age Discrimination in Employment Act.” A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents of a charge. Pp. 5–6. (c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights. Pp. 6–8. (d) The EEOC acted within its authority in formulating its request-to-act requirement. The agency’s policy statements, embodied in its compliance manual and internal directives, interpret not only its regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a “measure of respect” under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134, see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 487, whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218, 228. Here, the relevant interpretive statement has been binding on EEOC staff for at least five years. True, the agency’s implementation has been uneven; e.g., its field office did not treat respondent’s filing as a charge, and, as a result, she filed suit before the EEOC could initiate conciliation with FedEx. Such undoubted deficiencies are not enough, however, to deprive an agency that processes over 175,000 inquiries a year of all judicial deference. Moreover, the charge must be defined in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws, see 29 U. S. C. §626(d), and disseminating information about those laws to the public, see, e.g., Civil Rights Act of 1964, §§705(i), 705(g)(3). Pp. 8–12. (e) FedEx’s view that because the EEOC must act “[u]pon receiving … a charge,” 29 U. S. C. §626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual’s right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106, 112–113. Moreover, because the filing of a charge determines when the ADEA’s time limits and procedural mechanisms commence, it would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 444. Pp. 12–13. 2. The agency’s determination that respondent’s December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces. Pp. 13–17. (a) Respondent’s completed Form 283 contained all the information outlined in 29 CFR §1626.8, and, although the form did not itself request agency action, the accompanying affidavit asked the EEOC to “force [FedEx] to end [its] age discrimination plan.” FedEx contends unpersuasively that, in context, the latter statement is ambiguous because the affidavit also stated: “I have been … assur[ed] by [the EEOC] that this Affidavit will be considered confidential … and will not be disclosed … unless it becomes necessary … to produce the affidavit in a formal proceeding.” This argument reads too much into the nondisclosure assurances. Respondent did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential and, even then, consented to disclosure of the affidavit in a “formal proceeding.” Furthermore, respondent checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx. The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge. Pp. 13–15. (b) Because the EEOC failed to treat respondent’s filing as a charge in the first instance, both sides lost the benefits of the ADEA’s informal dispute resolution process. The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance. Pp. 16–17. 440 F. 3d 558, affirmed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined.
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This case arises under the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq. When an employee files “a charge alleging unlawful [age] discrimination” with the Equal Employment Opportunity Commission (EEOC), the charge sets the Act’s enforcement mechanisms in motion, commencing a waiting period during which the employee cannot file suit. The phrase, “a charge alleging unlawful discrimination,” is used in the statute, §626(d), and “charge” appears in the agency’s implementing regulations; but it has no statutory definition. In deciding what constitutes a charge under the Act the Courts of Appeals have adopted different definitions. As a result, difficulties have arisen in determining when employees may seek relief under the ADEA in courts of competent jurisdiction. As a cautionary preface, we note that the EEOC enforcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Americans with Disabilities Act of 1990, 104 Stat. 327, as amended, 42 U. S. C. §12101 et seq. While there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 586–587 (2004). This is so even if the EEOC forms and the same definition of charge apply in more than one type of discrimination case. I Petitioner, Federal Express Corporation (FedEx), provides mail pickup and delivery services to customers worldwide. In 1994 and 1995, FedEx initiated two programs, designed, it says, to make its 45,000-strong courier network more productive. The programs, “Best Practice Pays” (BPP) and “Minimum Acceptable Performance Standards” (MAPS), tied the couriers’ compensation and continued employment to certain performance benchmarks, for instance the number of stops a courier makes per day. Respondents are 14 current and former FedEx couriers over the age of 40. They filed suit in the United States District Court for the Southern District of New York on April 30, 2002, claiming, inter alia, that BPP and MAPS violate the ADEA. Asserting that their claims were typical of many couriers nationwide, respondents sought to represent a plaintiffs’ class of all couriers over the age of 40 who were subject to alleged acts of age discrimination by FedEx. The suit maintains that BPP and MAPS were veiled attempts to force older workers out of the company before they would be entitled to receive retirement benefits. FedEx, it is alleged, used the initiatives as a pretext for harassing and discriminating against older couriers in favor of younger ones. The immediate question before us is the timeliness of the suit filed by one of the plaintiffs below, Patricia Kennedy, referred to here as “respondent.” Petitioner moved to dismiss respondent’s action, contending respondent had not filed her charge with the EEOC at least 60 days before filing suit, as required by 29 U. S. C. §626(d). Respondent countered that she filed a valid charge on December 11, 2001, by submitting EEOC Form 283. The agency labels Form 283 an “Intake Questionnaire.” Respondent attached to the questionnaire a signed affidavit describing the alleged discriminatory employment practices in greater detail. The District Court determined these documents were not a charge and granted the motion to dismiss. No. 02 Civ. 3355(LMM) (SDNY, Oct. 9, 2002), App. to Pet. for Cert. 39a. An appeal followed, and the Court of Appeals for the Second Circuit reversed. See 440 F. 3d 558, 570 (2006). We granted certiorari to consider whether respondent’s filing was a charge, 551 U. S. ___ (2007), and we now affirm. II This case presents two distinct questions: What is a charge as the ADEA uses that term? And were the documents respondent filed in December 2001 a charge? A The relevant statutory provision states: “No civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. … . . . . . “Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” 29 U. S. C. §626(d). The Act does not define charge. While EEOC regulations give some content to the term, they fall short of a comprehensive definition. The agency has statutory authority to issue regulations, see §628; and when an agency invokes its authority to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–845 (1984). The regulations the agency has adopted—so far as they go—are reasonable constructions of the term charge. There is little dispute about this. The issue is the guidance the regulations give. One of the regulations, 29 CFR §1626.3 (2007), is entitled “Other definitions.” It says: “charge shall mean a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act.” Section 1626.8(a) identifies five pieces of information a “charge should contain”: (1)–(2) the names, addresses, and telephone numbers of the person making the charge and the charged entity; (3) a statement of facts describing the alleged discriminatory act; (4) the number of employees of the charged employer; and (5) a statement indicating whether the charging party has initiated state proceedings. The next subsection, §1626.8(b), however, seems to qualify these requirements by stating that a charge is “sufficient” if it meets the requirements of §1626.6—i.e., if it is “in writing and … name[s] the prospective respondent and … generally allege[s] the discriminatory act(s).” Even with the aid of the regulations the meaning of charge remains unclear, as is evident from the differing positions of the parties now before us and in the Courts of Appeals. Petitioner contends an Intake Questionnaire cannot be a charge unless the EEOC acts upon it. On the other hand some Courts of Appeals, including the Court of Appeals for the Second Circuit, take a position similar to the Government’s in this case, that an Intake Questionnaire can constitute a charge if it expresses the filer’s intent to activate the EEOC’s enforcement processes. See, e.g., Steffen v. Meridian Life Ins. Co., 859 F. 2d 534, 542 (CA7 1988). A third view, which seems to accord with respondent’s position, is that all completed Intake Questionnaires are charges. See, e.g., Casavantes v. California State Univ., Sacramento, 732 F. 2d 1441, 1443 (CA9 1984). B In support of her position that the Intake Questionnaire she filed, taken together with the attached six-page affidavit, meets the regulatory definition of a charge, respondent places considerable emphasis on what might be described as the regulations’ catchall or savings provision, 29 CFR §1626.8(b). This seems to require only a written document with a general allegation of discriminatory conduct by a named employer. Respondent points out that, when read together, §§1626.8(b) and 1626.6 say that a “charge is sufficient when the Commission receives … a written statement” that “name[s] the [employer] and … generally allege[s] the discriminatory act(s).” Re- spondent views this language as unequivocal and sees no basis for requiring that a charge contain any additional information. The EEOC’s view, as expressed in the Government’s amicus brief, however, is that the regulations identify certain requirements for a charge but do not provide an exhaustive definition. As such, not all documents that meet the minimal requirements of §1626.6 are charges. The question, then, becomes how to interpret the scope of the regulations. Just as we defer to an agency’s reasonable interpretations of the statute when it issues regulations in the first instance, see Chevron, supra, the agency is entitled to further deference when it adopts a reasonable interpretation of regulations it has put in force. See Auer v. Robbins, 519 U. S. 452 (1997). Under Auer, we accept the agency’s position unless it is “ ‘ “ plainly erroneous or inconsistent with the regulation.” ’ ” Id., at 461 (quoting Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 359 (1989)). In accord with this standard we accept the agency’s position that the regulations do not identify all necessary components of a charge; and it follows that a document meeting the requirements of §1626.6 is not a charge in every instance. The language in §§1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. True, the structure of the regulations is less than clear. But the relevant provisions are grouped under the title, “Procedures—Age Discrimination in Employment Act.” A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents a charge document must contain. This is the agency’s position, and we defer to it under Auer. C This does not resolve the case. While we agree with the Government that the regulations do not state all the elements a charge must contain, the question of what additional elements are required remains. On this point the regulations are silent. The EEOC submits that the proper test for determining whether a filing is a charge is whether the filing, taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights. Brief for United States as Amicus Curiae 15. The EEOC has adopted this position in the Government’s amicus brief and in various internal directives it has issued to its field offices over the years. See 1 EEOC Compliance Manual §2.2(b), p. 2:0001 (Aug. 2002); Memorandum from Elizabeth M. Thornton, Director, Office of Field Programs, EEOC, to All District, Area, and Local Office Directors et al. (Feb. 21, 2002), on line at http://www.eeoc.gov/charge/memo-2-21-02.html (hereinafter Thornton Memo) (all Internet materials as visited Feb. 21, 2008, and available in Clerk of Court’s case file); Memorandum from Nicholas M. Inzeo, Director, Office of Field Programs, EEOC, to All District, Field, Area, and Local Office Directors et al. (Aug. 13, 2007), on line at http://www.eeoc.gov/charge/memo-8-13-07.html. The Government asserts that this request-to-act requirement is a reasonable extrapolation of the agency’s regulations and that, as a result, the agency’s position is dispositive under Auer. The Government acknowledges the regulations do not, on their face, speak to the filer’s intent. To the extent the request-to-act requirement can be derived from the text of the regulations, it must spring from the term charge. But, in this context, the term charge is not a construct of the agency’s regulations. It is a term Congress used in the underlying statute that has been incorporated in the regulations by the agency. Thus, insofar as they speak to the filer’s intent, the regulations do so by repeating language from the underlying statute. It could be argued, then, that this case can be distinguished from Auer. See Gonzales v. Oregon, 546 U. S. 243, 257 (2006) (the “near equivalence of the statute and regulation belies [the case for] Auer deference”); Christensen v. Harris County, 529 U. S. 576, 588 (2000) (an agency cannot “under the guise of interpreting a regulation … create de facto a new regulation”). It is not necessary to hold that Auer deference applies to the agency’s construction of the term charge as it is used in the regulations, however. For even if Auer deference is inapplicable, we would accept the agency’s proposed construction of the statutory term, and we turn next to the reasons for this conclusion. D In our view the agency’s policy statements, embodied in its compliance manual and internal directives, interpret not only the regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they do reflect “ ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ ” Bragdon v. Abbott, 524 U. S. 624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U. S. 134 (1944)). As such, they are entitled to a “measure of respect” under the less deferential Skidmore standard. Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 487, 488 (2004); United States v. Mead Corp., 533 U. S. 218, 227–239 (2001). Under Skidmore, we consider whether the agency has applied its position with consistency. Mead Corp., supra, at 228; Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). Here, the relevant interpretive statement, embodied in the compliance manual and memoranda, has been binding on EEOC staff for at least five years. See Thornton Memo, supra. True, as the Government concedes, the agency’s implementation of this policy has been uneven. See Brief for United States as Amicus Curiae 25. In the very case before us the EEOC’s Tampa field office did not treat respondent’s filing as a charge, as the Government now maintains it should have done. And, as a result, respondent filed suit before the agency could initiate a conciliation process with the employer. These undoubted deficiencies in the agency’s administration of the statute and its regulatory scheme are not enough, however, to deprive the agency of all judicial deference. Some degree of inconsistent treatment is unavoidable when the agency processes over 175,000 inquiries a year. Id., at 19, n. 10. And although one of the policy memoranda the Government relies upon was circulated after we granted certiorari, the position the document takes is consistent with the EEOC’s previous directives. We see no reason to assume the agency’s position—that a charge is filed when the employee requests some action—was framed for the specific purpose of aiding a party in this litigation. Cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212–213 (1988). The EEOC, moreover, has drawn our attention to the need to define charge in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws and disseminating information about those laws to the public. Cf. Barnhart v. Walton, 535 U. S. 212, 225 (2002) (noting that deference is appropriate in “matters of detail related to [an agency’s] administration” of a statute). The agency’s duty to initiate informal dispute resolution processes upon receipt of a charge is mandatory in the ADEA context. See 29 U. S. C. §626(d) (“[T]he Commission … shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion”); Cf. Lopez v. Davis, 531 U. S. 230, 241 (2001) (noting that Congress’ use of the term “ ‘shall’ ” indicates an intent to “impose discretionless obligations”). Yet, at the same time, Congress intended the agency to serve an “educational” function. See Civil Rights Act of 1964, §705(i), 78 Stat. 259; id., §705(g)(3) (noting that the Commission shall have the power to “furnish to persons subject to this title such technical assistance as they may request”). Providing answers to the public’s questions is a critical part of the EEOC’s mission; and it accounts for a substantial part of the agency’s work. Of about 175,000 inquiries the agency receives each year, it dockets around 76,000 of these as charges. Brief for United States as Amicus Curiae 19, n. 10. Even allowing for errors in the classification of charges and noncharges, it is evident that many filings come from individuals who have questions about their rights and simply want information. For efficient operations, and to effect congressional intent, the agency requires some mechanism to separate information requests from enforcement requests. Respondent’s proposed standard, that a charge need contain only an allegation of discrimination and the name of the employer, falls short in this regard. Were that stripped-down standard to prevail, individuals who approach the agency with questions could end up divulging enough information to create a charge. This likely would be the case for anyone who completes an Intake Questionnaire—which provides space to indicate the name and address of the offending employer and asks the individual to answer the question, “What action was taken against you that you believe to be discrimination?” App. to Pet. for Cert. 43a. If an individual knows that reporting this minimal information to the agency will mandate the agency to notify her employer, she may be discouraged from consulting the agency or wait until her employment situation has become so untenable that conciliation efforts would be futile. The result would be contrary to Congress’ expressed desire that the EEOC act as an information provider and try to settle employment disputes through informal means. For these reasons, the definition of charge respondent advocates—i.e., that it need conform only to 29 CFR §1626.6—is in considerable tension with the structure and purposes of the ADEA. The agency’s interpretive position—the request-to-act requirement—provides a reasonable alternative that is consistent with the statutory framework. No clearer alternatives are within our authority or expertise to adopt; and so deference to the agency is appropriate under Skidmore. We conclude as follows: In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee. Some Courts of Appeals have referred to a “ ‘manifest intent’ ” test, under which, in order to be deemed a charge, the filing must demonstrate “an individual’s intent to have the agency initiate its investigatory and conciliatory processes.” 440 F. 3d, at 566 (case below); see also Wilkerson v. Grinnell Corp., 270 F. 3d 1314, 1319 (CA11 2001); Steffen, 859 F. 2d, at 543; Bihler v. Singer Co., 710 F. 2d 96, 99 (CA3 1983). If this formulation suggests the filer’s state of mind is somehow determinative, it misses the point. If, however, it means the filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes, that would be in accord with our conclusion. It is true that under this permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA. Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties. See Estelle v. Gamble, 429 U. S. 97, 106 (1976) (Pro se pleadings are to be “liberally construed”). In the administrative context now before us it appears pro se filings may be the rule, not the exception. The ADEA, like Title VII, sets up a “remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.” EEOC v. Commercial Office Products Co., 486 U. S. 107, 124 (1988); see also Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979) (noting the “common purpose” of Title VII and the ADEA). The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the Act that a charge can be a form, easy to complete, or an informal document, easy to draft. The agency’s proposed test implements these purposes. Reasonable arguments can be made that the agency should adopt a standard giving more guidance to filers, making it clear that the request to act must be stated in quite explicit terms. A rule of that sort might yield more consistent results. This, however, is a matter for the agency to decide in light of its experience and expertise in protecting the rights of those who are covered by the Act. For its decisions in this regard the agency is subject to the oversight of the political branches. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005) (“Filling these gaps [in ambiguous statutes] involves difficult policy choices that agencies are better equipped to make than courts”). We find no reason in this case to depart from our usual rule: Where ambiguities in statutory analysis and application are presented, the agency may choose among reasonable alternatives. E Asserting its interest as an employer, petitioner urges us to condition the definition of charge, and hence an employee’s ability to sue, upon the EEOC’s fulfilling its mandatory duty to notify the charged party and initiate a conciliation process. In petitioner’s view, because the Commission must act “[u]pon receiving such a charge,” 29 U. S. C. §626(d), its failure to do so means the filing is not a charge. The agency rejects this view, as do we. As a textual matter, the proposal is too artificial a reading of the statute to accept. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual’s right to sue upon the agency taking any action. Ibid. (“No civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission”); Cf. Edelman v. Lynchburg College, 535 U. S. 106, 112–113 (2002) (rejecting the argument that a charge is not a charge until the filer satisfies Title VII’s oath or affirmation requirement). The filing of a charge, moreover, determines when the Act’s time limits and procedural mechanisms commence. It would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 444 (1982) (Powell, J., concurring in judgment). III Having determined that the agency acted within its authority in formulating the rule that a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee’s behalf, the question is whether the filing here meets this test. The agency says it does, and we agree. The agency’s determination is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces. Respondent’s completed intake form contained all of the information outlined in 29 CFR §1626.8, including: the employee’s name, address, and telephone number, as well as those of her employer; an allegation that she and other employees had been the victims of “age discrimination”; the number of employees who worked at the Dunedin, Florida, facility where she was stationed; and a statement indicating she had not sought the assistance of any government agency regarding this matter. See App. 265. Petitioner maintains the filing was still deficient because it contained no request for the agency to act. Were the Intake Questionnaire the only document before us we might agree its handwritten statements do not request action. The design of the form in use in 2001, moreover, does not give rise to the inference that the employee requests action against the employer. Unlike EEOC Form 5, the Intake Questionnaire is not labeled a “Charge of Discrimination,” see id., at 275. In fact the wording of the questionnaire suggests the opposite: that the form’s purpose is to facilitate “pre-charge filing counseling” and to enable the agency to determine whether it has jurisdiction over “potential charges.” Id., at 265. There might be instances where the indicated discrimination is so clear or pervasive that the agency could infer from the allegations themselves that action is requested and required, but the agency is not required to treat every completed Intake Questionnaire as a charge. In this case, however, the completed questionnaire filed in December 2001 was supplemented with a detailed six-page affidavit. At the end of the last page, respondent asked the agency to “[p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High-Velocity Culture Change.” Id., at 273. This is properly construed as a request for the agency to act. Petitioner says that, in context, the statement is ambiguous. It points to respondent’s accompanying statement that “I have been given assurances by an Agent of the U. S. Equal Employment Opportunity Commission that this Affidavit will be considered confidential by the United States Government and will not be disclosed as long as the case remains open unless it becomes necessary for the Government to produce the affidavit in a formal proceeding.” Id., at 266. Petitioner argues that if respondent intended the affidavit to be kept confidential, she could not have expected the agency to treat it as a charge. This reads too much into the assurance of nondisclosure. Respondent did not request the agency to avoid contacting her employer. She stated only her understanding that the affidavit itself would be kept confidential. Even then, she gave consent for the agency to disclose the affidavit in a “formal proceeding.” Furthermore, respondent checked a box on the Intake Questionnaire giving consent for the agency to disclose her identity to the employer. Id., at 265. Here the combination of the waiver and respondent’s request in the affidavit that the agency “force” the employer to stop discriminating against her were enough to bring the entire filing within the definition of charge we adopt here. Petitioner notes that respondent did file a Form 5 (a formal charge) with the EEOC but only after she filed her complaint in the District Court. This shows, petitioner argues, that respondent did not intend the earlier December 2001 filing to be a charge; otherwise, there would have been no reason for the later filing. What matters, however, is whether the documents filed in December 2001 should be interpreted as a request for the agency to act. Postfiling conduct does not nullify an earlier, proper charge. Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation. IV The Federal Government interacts with individual citizens through all but countless forms, schedules, manuals, and worksheets. Congress, in most cases, delegates the format and design of these instruments to the agencies that administer the relevant laws and processes. An assumption underlying the congressional decision to delegate rulemaking and enforcement authority to the agency, and the consequent judicial rule of deference to the agency’s determinations, is that the agency will take all efforts to ensure that affected parties will receive the full benefits and protections of the law. Here, because the agency failed to treat respondent’s filing as a charge in the first instance, both sides lost the benefits of the ADEA’s informal dispute resolution process. The employer’s interests, in particular, were given short shrift, for it was not notified of respondent’s complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset. This result is unfortunate, but, at least in this case, unavoidable. While courts will use their powers to fashion the best relief possible in situations like this one, the ultimate responsibility for establishing a clearer, more consistent process lies with the agency. The agency already has made some changes to the charge-filing process. See Brief for United States as Amicus Curiae 3, n. 2 (noting that the Intake Questionnaire form respondent filed has been replaced with a reworded form). To reduce the risk of further misunderstandings by those who seek its assistance, the agency should determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate. The judgment of the Court of Appeals is affirmed. It is so ordered.
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554.US.33
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After respondent (Piccadilly) declared bankruptcy under Chapter 11, but before its plan was submitted to the Bankruptcy Court, that court authorized Piccadilly to sell its assets, approved its settlement agreement with creditors, and granted it an exemption under 11 U. S. C. §1146(a), which provides a tax-stamp exemption for any asset transfer “under a plan confirmed under section 1129.” After the sale, Piccadilly filed its Chapter 11 plan, but before the plan could be confirmed, petitioner Florida Department of Revenue (Florida) objected, arguing that the stamp taxes it had assessed on certain of the transferred assets fell outside §1146(a)’s exemption because the transfer had not been under a confirmed plan. The court granted Piccadilly summary judgment. The Eleventh Circuit affirmed, holding that §1146(a)’s exemption applies to preconfirmation transfers necessary to the consummation of a confirmed Chapter 11 plan, provided there is some nexus between such transfers and the plan; that §1146(a)’s text was ambiguous and should be interpreted consistent with the principle that a remedial statute should be construed liberally; and that this interpretation better accounted for the practicalities of Chapter 11 cases because a debtor may need to transfer assets to induce relevant parties to endorse a proposed plan’s confirmation. Held: Because §1146(a) affords a stamp-tax exemption only to transfers made pursuant to a Chapter 11 plan that has been confirmed, Piccadilly may not rely on that provision to avoid Florida’s stamp taxes. The most natural reading of §1146(a)’s text, the provision’s placement within the Bankruptcy Code, and applicable canons of statutory construction lead to this conclusion. Pp. 4–19. (a) Florida’s reading of §1146(a) is the most natural. Contending that the text unambiguously limits stamp-tax exemptions to postconfirmation transfers made under the authority of a confirmed plan, Florida argues that “plan confirmed” denotes a plan confirmed in the past, and that “under” should be read to mean “with the authorization of” or “inferior or subordinate” to its referent, here the confirmed plan, see Ardestani v. INS, 502 U. S. 129, 135. Piccadilly counters that the provision does not unambiguously impose a temporal requirement, contending that had Congress intended “plan confirmed” to mean “confirmed plan,” it would have used that language, and that “under” is as easily read to mean “in accordance with.” While both sides present credible interpretations, Florida’s is the better one. Congress could have used more precise language and thus removed all ambiguity, but the two readings are not equally plausible. Piccadilly’s interpretation places greater strain on the statutory text than Florida’s simpler construction. And Piccadilly’s emphasis on the distinction between “plan confirmed” and “confirmed plan” is unavailing because §1146(a) specifies not only that a transfer be “under a plan,” but also that the plan be confirmed pursuant to §1129. Ultimately this Court need not decide whether §1146(a) is unambiguous on its face, for, based on the parties’ other arguments, any ambiguity must be resolved in Florida’s favor. Pp. 4–7. (b) Even on the assumption that §1146(a)’s text is ambiguous, reading it in context with other relevant Code provisions reveals nothing justifying Piccadilly’s claims that had Congress intended §1146(a) to apply exclusively to postconfirmation transfers, it would have made its intent plain with an express temporal limitation, and that “under” should be construed broadly to mean in “in accordance with.” If statutory context suggests anything, it is that §1146(a) is inapplicable to preconfirmation transfers. The provision’s placement in a subchapter entitled “POSTCONFIRMATION MATTERS” undermines Piccadilly’s view that it extends to preconfirmation transfers. Piccadilly’s textual and contextual arguments, even if fully accepted, would establish at most that the statutory language is ambiguous, not that the purported ambiguity should be resolved in Piccadilly’s favor. Pp. 7–13. (c) The federalism cannon articulated in California State Bd. of Equalization v. Sierra Summit, Inc., 490 U. S. 844, 851–852—that courts should “proceed carefully when asked to recognize an exemption from state taxation that Congress has not clearly expressed ”—obliges the Court to construe §1146(a)’s exemption narrowly. Piccadilly’s interpretation would require the Court to do exactly what the canon counsels against: recognize an exemption that Congress has not clearly expressed, namely, an exemption for preconfirmation transfers. The various substantive canons on which Piccadilly relies for its interpretation—most notably, that a remedial statute should be construed liberally—are inapposite in this case. Pp. 13–19. 484 F. 3d 1299, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.
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The Bankruptcy Code provides a stamp-tax exemption for any asset transfer “under a plan confirmed under [Chapter 11]” of the Code. 11 U. S. C. §1146(a) (2000 ed., Supp. V). Respondent Piccadilly Cafeterias, Inc., was granted an exemption for assets transferred after it had filed for bankruptcy but before its Chapter 11 plan was submitted to, and confirmed by, the Bankruptcy Court. Petitioner, the Florida Department of Revenue, seeks reversal of the decision of the Court of Appeals upholding the exemption for Piccadilly’s asset transfer. Because we hold that §1146(a)’s stamp-tax exemption does not apply to transfers made before a plan is confirmed under Chapter 11, we reverse the judgment below. I Piccadilly was founded in 1944 and was one of the Nation’s most successful cafeteria chains until it began experiencing financial difficulties in the last decade. On October 29, 2003, Piccadilly declared bankruptcy under Chapter 11 of the Bankruptcy Code, §1101 et seq. (2000 ed. and Supp. V), and requested court authorization to sell substantially all its assets outside the ordinary course of business pursuant to §363(b)(1) (2000 ed., Supp. V). Piccadilly prepared to sell its assets as a going concern and sought an exemption from any stamp taxes on the eventual transfer under §1146(a) of the Code.[Footnote 1] The Bankruptcy Court conducted an auction in which the winning bidder agreed to purchase Piccadilly’s assets for $80 million. On January 26, 2004, as a precondition to the sale, Piccadilly entered into a global settlement agreement with committees of senior secured noteholders and unsecured creditors. The settlement agreement dictated the priority of distribution of the sale proceeds among Piccadilly’s creditors. On February 13, 2004, the Bankruptcy Court approved the proposed sale and settlement agreement. The court also ruled that the transfer of assets was exempt from stamp taxes under §1146(a). The sale closed on March 16, 2004. Piccadilly filed its initial Chapter 11 plan in the Bankruptcy Court on March 26, 2004, and filed an amended plan on July 31, 2004.[Footnote 2] The plan provided for distribution of the sale proceeds in a manner consistent with the settlement agreement. Before the Bankruptcy Court confirmed the plan, Florida filed an objection, seeking a declaration that the $39,200 in stamp taxes it had assessed on certain of Piccadilly’s transferred assets fell outside §1146(a)’s exemption because the transfer had not been “under a plan confirmed” under Chapter 11. On October 21, 2004, the bankruptcy court confirmed the plan. On cross-motions for summary judgment on the stamp-tax issue, the Bankruptcy Court granted summary judgment in favor of Piccadilly, reasoning that the sale of substantially all Piccadilly’s assets was a transfer “ ‘under’ ” its confirmed plan because the sale was necessary to consummate the plan. App. D to Pet. for Cert. 40a–41a. The District Court upheld the decision on the ground that §1146(a), in certain circumstances, affords a stamp-tax exemption even when a transfer occurs prior to confirmation. In re Piccadilly Cafeterias, Inc., 379 B. R. 215, 226 (SD Fla. 2006). The Court of Appeals for the Eleventh Circuit affirmed, holding that “§1146[(a)]’s tax exemption may apply to those pre-confirmation transfers that are necessary to the consummation of a confirmed plan of reorganization, which, at the very least, requires that there be some nexus between the pre-confirmation transfer and the confirmed plan.” In re Piccadilly Cafeterias, Inc., 484 F. 3d 1299, 1304 (2007) (per curiam). Finding the statutory text ambiguous, the Court of Appeals concluded that §1146(a) should be interpreted consistent with “the principle that a remedial statute such as the Bankruptcy Code should be liberally construed.” Ibid. The court further noted that its interpretation of §1146(a) better accounted for “the practical realities of Chapter 11 reorganization cases” because a debtor may need to transfer assets to induce relevant parties to endorse the proposed confirmation of a plan. Ibid. The Court of Appeals acknowledged that its holding conflicted with the approach taken by the Courts of Appeals for the Third and Fourth Circuits, id., at 1302, which have held that §1146(a) “does not apply to … transactions that occur prior to the confirmation of a plan under Chapter 11 of the Bankruptcy Code.” In re Hechinger Inv. Co. of Del., 335 F. 3d 243, 246 (CA3 2003); see also In re NVR, LP, 189 F. 3d 442, 458 (CA4 1999) (holding that §1146(a) “appl[ies] only to transfers under the Plan occurring after the date of confirmation”). We granted certiorari, 552 U. S. ___ (2007), to resolve the conflict among the Courts of Appeals as to whether §1146(a) applies to preconfirmation transfers. II Section 1146(a), entitled “Special tax provisions,” provides: “The issuance, transfer, or exchange of a security, or the making or delivery of an instrument of transfer under a plan confirmed under section 1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax.” (Emphasis added.) Florida asserts that §1146(a) applies only to postconfirmation sales; Piccadilly contends that it extends to preconfirmation transfers as long as they are made in accordance with a plan that is eventually confirmed. Florida and Piccadilly base their competing readings of §1146(a) on the provision’s text, on inferences drawn from other Code provisions, and on substantive canons of statutory construction. We consider each of their arguments in turn. A Florida contends that §1146(a)’s text unambiguously limits stamp-tax exemptions to postconfirmation transfers made under the authority of a confirmed plan. It observes that the word “confirmed” modifies the word “plan” and is a past participle, i.e., “[a] verb form indicating past or completed action or time that is used as a verbal adjective in phrases such as baked beans and finished work.” American Heritage Dictionary 1287 (4th ed. 2000). Florida maintains that a past participle indicates past or completed action even when it is placed after the noun it modifies, as in “beans baked in the oven,” or “work finished after midnight.” Thus, it argues, the phrase “plan confirmed” denotes a “confirmed plan”—meaning one that has been confirmed in the past. Florida further contends that the word “under” in “under a plan confirmed” should be read to mean “with the authorization of ” or “inferior or subordinate” to its referent, here the confirmed plan. See Ardestani v. INS, 502 U. S. 129, 135 (1991) (noting that a thing that is “ ‘under’ ” a statute is most naturally read as being “ ‘subject to’ ” or “ ‘governed by’ ” the statute). Florida points out that, in the other two appearances of “under” in §1146(a), it clearly means “subject to.” Invoking the textual canon that “ ‘identical words used in different parts of the same act are intended to have the same meaning,’ ” Commissioner v. Keystone Consol. Industries, Inc., 508 U. S. 152, 159 (1993), Florida asserts the term must also have its core meaning of “subject to” in the phrase “under a plan confirmed.” Florida thus reasons that to be eligible for §1146(a)’s exemption, a transfer must be subject to a plan that has been confirmed subject to §1129 (2000 ed. and Supp. V). Echoing the Fourth Circuit’s reasoning in NVR, supra, at 457, Florida concludes that a transfer made prior to the date of plan confirmation cannot be subject to, or under the authority of, something that did not exist at the time of the transfer—a confirmed plan. Piccadilly counters that the statutory language does not unambiguously impose a temporal requirement. It contends that “plan confirmed” is not necessarily the equivalent of “confirmed plan,” and that had Congress intended the latter, it would have used that language, as it did in a related Code provision. See §1142(b) (referring to “any instrument required to effect a transfer of property dealt with by a confirmed plan”). Piccadilly also argues that “under” is just as easily read to mean “in accordance with.” It observes that the variability of the term “under” is well-documented, noting that the American Heritage Dictionary 1395 (1976) provides 15 definitions, including “[i]n view of,” “because of,” “by virtue of,” as well as “[s]ubject to the restraint … of.” See also Ardestani, supra, at 135 (recognizing that “[t]he word ‘under’ has many dictionary definitions and must draw its meaning from its context”). Although “under” appears several times in §1146(a), Piccadilly maintains there is no reason why a term of such common usage and variable meaning must have the same meaning each time it is used, even in the same sentence. As an illustration, it points to §302(a) of the Bankruptcy Code, which states, “The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter.” Piccadilly contends that this provision is best read as: “The commencement of a joint case subject to the provisions of a chapter of this title constitutes an order for relief in such chapter.” Piccadilly thus concludes that the statutory text—standing alone—is susceptible of more than one interpretation. See Hechinger, supra, at 253 (“[W]e cannot say that the language of [§1146(a)] rules out the possibility that ‘under a plan confirmed’ means ‘in agreement with a plan confirmed’ ”). While both sides present credible interpretations of §1146(a), Florida has the better one. To be sure, Congress could have used more precise language—i.e., “under a plan that has been confirmed”—and thus removed all ambiguity. But the two readings of the language that Congress chose are not equally plausible: Of the two, Florida’s is clearly the more natural. The interpretation advanced by Piccadilly and adopted by the Eleventh Circuit—that there must be “some nexus between the pre-confirmation transfer and the confirmed plan” for §1146(a) to apply, 484 F. 3d, at 1304—places greater strain on the statutory text than the simpler construction advanced by Florida and adopted by the Third and Fourth Circuits. Furthermore, Piccadilly’s emphasis on the distinction between “plan confirmed” and “confirmed plan” is unavailing because §1146(a) specifies not only that a tax-exempt transfer be “under a plan,” but also that the plan in question be confirmed pursuant to §1129. Congress’ placement of “plan confirmed” before “under section 1129” avoids the ambiguity that would have arisen had it used the term “confirmed plan,” which could easily be read to mean that the transfer must be “under section 1129” rather than under a plan that was itself confirmed under §1129. Although we agree with Florida that the more natural reading of §1146(a) is that the exemption applies only to postconfirmation transfers, ultimately we need not decide whether the statute is unambiguous on its face. Even assuming, arguendo, that the language of §1146(a) is facially ambiguous, the ambiguity must be resolved in Florida’s favor. We reach this conclusion after considering the parties’ other arguments, to which we now turn. B Piccadilly insists that, whatever the degree of ambiguity on its face, §1146(a) becomes even more ambiguous when read in context with other Bankruptcy Code provisions. Piccadilly asserts that if Congress had intended §1146(a) to apply exclusively to transfers occurring after confirmation, it would have made its intent plain with an express temporal limitation similar to those appearing elsewhere in the Code. For example, §1127 governs modifications to a Chapter 11 plan, providing that the proponent of a plan may modify the plan “at any time before confirmation,” or, subject to certain restrictions, “at any time after confirmation of such plan.” §§1127(a)–(b). Similar examples abound. See, e.g., §1104(a) (“[a]t any time after the commencement of the case but before confirmation of a plan …”); §1104(c) (“[a]t any time before the confirmation of a plan …”). Piccadilly emphasizes that, “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.” Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted). Because Congress did not impose a clear and commonly used temporal limitation in §1146(a), Piccadilly concludes that Congress did not intend one to exist. Piccadilly buttresses its conclusion by pointing out that §1146(b)—the subsection immediately following §1146(a)—includes an express temporal limitation. See §1146(b) (2000 ed., Supp. V) (providing that a bankruptcy court may declare certain tax consequences after the date a government unit responds to a plan proponent’s request or “270 days after such request,” whichever is earlier). But Congress included no such limitation in subsection (a). Piccadilly also relies on other Code provisions to bolster its argument that the term “under” preceding “a plan confirmed” in §1146(a) should be read broadly—to mean “in accordance with” rather than the narrower “authorized by.” Apart from §302, discussed above, Piccadilly adverts to §111, which states that an agency providing credit counseling to debtors is required to meet “the standards set forth under this section.” §111(b)(4)(A) (2000 ed., Supp. V). Piccadilly argues that this language requires the agency to meet “the standards set forth in this section,” because reading the quoted language to mean “the standards set forth authorized by this section” would render the words “set forth” nonsensical. Piccadilly additionally refers to §303(a), which provides that “[a]n involuntary case may be commenced only under chapter 7 or 11 of this title.” Again, Piccadilly asserts that this language means “an involuntary case may be commenced only in chapter 7 or 11 of this title.” It reasons that “under” in §303(a) cannot mean “authorized by” because §303(a) itself authorizes involuntary cases, and the provisions of Chapters 7 and 11 do not. Piccadilly makes a similar argument with respect to §343, which provides that “[t]he debtor shall appear and submit to examination under oath at the meeting of creditors.” Reading “under” to mean “authorized by” would make little sense here. On the basis of these examples, Piccadilly concludes that the term “under” is ambiguous. Finally, Piccadilly maintains that “under” in §1146(a) should be construed broadly in light of §365(g)(1) of the Bankruptcy Code, which provides that rejection of an executory contract or unexpired lease constitutes the equivalent of a prebankruptcy breach “if such contract or lease has not been assumed under this section or under a plan confirmed under chapter . . . 11.” In Hechinger, the Third Circuit concluded that substituting “authorized by” for “under” in §1146(a) would be consistent with the use of the parallel language in §365(g)(1). 335 F. 3d, at 254. Piccadilly attempts to refute Hechinger’s reading of §365(g)(1), asserting that, because authorization for the assumption of a lease under a plan is described in §1123(b)(2), which “circles back to section 365,” such authorization cannot be “subject to” or “authorized by” Chapter 11. Brief for Respondent 39 (emphasis deleted); see 11 U. S. C. §1123(b)(2) (providing that “a plan may . . . subject to section 365 of this title, provide for the assumption, rejection, or assignment of any executory contract or unexpired lease of the debtor not previously rejected under such section”). The phrase “under a plan confirmed” in §365(g)(1), contends Piccadilly, is thus best read to mean “in accordance with a plan confirmed” because a plan may provide for the assumption of an executory contract or unexpired lease but not—unlike §365—be the ultimate authority for that assumption. As a result, Piccadilly concludes that the identical language of §1146(a) should have the same meaning. Piccadilly supports this point with its assertion that, unlike sales, postconfirmation assumptions or rejections are not permitted under the Bankruptcy Code. See NLRB v. Bildisco & Bildisco, 465 U. S. 513, 529 (1984) (stating that in “a Chapter 11 reorganization, a debtor-in-possession has until a reorganization plan is confirmed to decide whether to accept or reject an executory contract”). Because, as Piccadilly contends, the phrase “under a plan confirmed under chapter . . . 11” in §365(g)(1) cannot refer to assumptions or rejections occurring after confirmation, it would be anomalous to read the identical phrase in §1146(a) to cover only postconfirmation transfers. For its part, Florida argues that the statutory context of §1146(a) supports its position that the stamp-tax exemption applies exclusively to postconfirmation transfers. It observes that the subchapter in which §1146(a) appears is entitled, “POSTCONFIRMATION MATTERS.” Florida contends that, while not dispositive, the placement of a provision in a particular subchapter suggests that its terms should be interpreted consistent with that subchapter. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”). In addition, Florida dismisses Piccadilly’s references to the temporal limitations in other Code provisions on the ground that it would have been superfluous for Congress to add any further limitations to §1146(a)’s already unambiguous temporal element. Even on the assumption that the text of §1146(a) is ambiguous, we are not persuaded by Piccadilly’s contextual arguments. As noted above, Congress could have used language that made §1146(a)’s temporal element clear beyond question. Unlike §1146(a), however, the temporal language examples quoted by Piccadilly are indispensable to the operative meaning of the provisions in which they appear. Piccadilly’s reliance on §1127, for example, is misplaced because that section explicitly differentiates between preconfirmation modifications, see §1127(a), and postconfirmation modifications, which are permissible “only if circumstances warrant” them, §1127(b). It was unnecessary for Congress to include in §1146(a) a phrase such as “at any time after confirmation of such plan” because the phrase “under a plan confirmed” is most naturally read to require that there be a confirmed plan at the time of the transfer. Even if we were to adopt Piccadilly’s broad definition of “under,” its interpretation of the statute faces other obstacles. The asset transfer here can hardly be said to have been consummated “in accordance with” any confirmed plan because, as of the closing date, Piccadilly had not even submitted its plan to the Bankruptcy Court for confirmation. Piccadilly’s asset sale was thus not conducted “in accordance with” any plan confirmed under Chapter 11. Rather, it was conducted “in accordance with” the procedures set forth in Chapter 3—specifically, §363(b)(1). To read the statute as Piccadilly proposes would make §1146(a)’s exemption turn on whether a debtor-in-possession’s actions are consistent with a legal instrument that does not exist—and indeed may not even be conceived of—at the time of the sale. Reading §1146(a) in context with other relevant Code provisions, we find nothing justifying such a curious interpretation of what is a straightforward exemption. Nor does anything in §365(g)(1) recommend Piccadilly’s reading of §1146(a). Section 365(g) generally allows a trustee to reject “an executory contract or unexpired lease of the debtor,” i.e., to reject a contract that is unfavorable to the estate, subject to court approval. As the text makes clear, such approval may occur either under “this section,” §365(g)—i.e., “at any time before the confirmation of a plan,” §365(d)(2)—or “under a plan confirmed under chapter 9, 11, 12, or 13,” §365(g)(1). Piccadilly relies heavily on Bildisco, supra, in which this Court held that §365 permits a debtor-in-possession to reject a collective-bargaining agreement like any other executory contract, and that doing so is not an unfair labor practice under the National Labor Relations Act. In reaching this conclusion, the Court observed that “a debtor-in-possession has until a reorganization plan is confirmed to decide whether to accept or reject an executory contract.” 465 U. S., at 529 (emphasis added). We agree with Bildisco’s commonsense observation that the decision whether to reject a contract or lease must be made before confirmation. But that in no way undermines the fact that the rejection takes effect upon or after confirmation of the Chapter 11 plan (or before confirmation if pursuant to §365(d)(2)). In the context of §1146(a), the decision whether to transfer a given asset “under a plan confirmed” must be made prior to submitting the Chapter 11 plan to the bankruptcy court, but the transfer itself cannot be “under a plan confirmed” until the court confirms the plan in question. Only at that point does the transfer become eligible for the stamp-tax exemption. [Footnote 3] If the statutory context suggests anything, it is that §1146(a) is inapplicable to preconfirmation transfers. We find it informative that Congress placed §1146(a) in a subchapter entitled, “POSTCONFIRMATION MATTERS.” To be sure, a subchapter heading cannot substitute for the operative text of the statute. See, e.g., Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“ ‘[T]he title of a statute . . . cannot limit the plain meaning of the text’ ”). Nonetheless, statutory titles and section headings “ ‘are tools available for the resolution of a doubt about the meaning of a statute.’ ” Porter v. Nussle, 534 U. S. 516, 528 (2002). The placement of §1146(a) within a subchapter expressly limited to postconfirmation matters undermines Piccadilly’s view that §1146(a) covers preconfirmation transfers. But even if we were fully to accept Piccadilly’s textual and contextual arguments, they would establish at most that the statutory language is ambiguous. They do not—and largely are not intended to—demonstrate that §1146(a)’s purported ambiguity should be resolved in Piccadilly’s favor. Florida argues that various nontextual canons of construction require us to resolve any ambiguity in its favor. Piccadilly responds with substantive canons of its own. It is to these dueling canons of construction that we now turn. C Florida contends that even if the statutory text is deemed ambiguous, applicable substantive canons compel its interpretation of §1146(a). Florida first invokes the canon that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change.” Lorillard v. Pons, 434 U. S. 575, 580–581 (1978). Florida observes that the relevant language of §1146(a) relating to “under a plan confirmed” has remained unchanged since 1978 despite several revisions of the Bankruptcy Code. The most recent revision in 2005 occurred after the Fourth Circuit’s decision in NVR and the Third Circuit’s decision in Hechinger but before the Eleventh Circuit’s decision below. Florida asserts that Congress ratified this longstanding interpretation when, in its most recent amendments to the Code, it “readopted” the stamp-tax provision verbatim as §1146(a). Brief for Petitioner 26. Florida also invokes the substantive canon—on which the Third Circuit relied in Hechinger—that courts should “ ‘proceed carefully when asked to recognize an exemption from state taxation that Congress has not clearly expressed.’ ” 335 F. 3d, at 254 (quoting California State Bd. of Equalization v. Sierra Summit, Inc., 490 U. S. 844, 851–852 (1989)). In light of this directive, Florida contends that §1146(a)’s language must be construed strictly in favor of the States to prevent unwarranted displacement of their tax laws. See National Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U. S. 582, 590 (1995) (discussing principles of comity in taxation and the “federal reluctance to interfere with state taxation” given the “strong background presumption against interference”). Furthermore, Florida notes that the canon also discourages federal interference with the administration of a State’s taxation scheme. See id., at 586, 590. Florida contends that the Court of Appeals’ extension of §1146(a) to preconfirmation transfers directly interferes with the administration of the State’s stamp tax, which is imposed “prior to recordation” of the instrument of transfer. Fla. Stat. §§201.01, 201.02(1) (2006). Extending the exemption to transfers that occurred months or years before a confirmable plan even existed, Florida explains, may require the States to “ ‘unravel’ ” stamp taxes already collected. Brief for Petitioner 31. Alternatively, should a court grant an exemption under §1146(a) before confirmation, States would be saddled with the task of monitoring whether the plan is ever eventually confirmed. In response, Piccadilly contends that the federalism principle articulated in Sierra Summit, supra, at 852, does not apply where there is a “clear expression of an exemption from state taxation” overriding a State’s authority to tax. In Piccadilly’s view, that is precisely the case with regard to §1146(a), which proscribes the imposition of stamp taxes and demonstrates Congress’ intent to exempt a category of state taxation. Piccadilly further maintains that Florida’s stamp tax is nothing more than a postpetition claim, specifically an administrative expense, which is paid as a priority claim ahead of the prepetition claims of most creditors. Equating Florida’s receipt of tax revenue with a preference in favor of a particular claimant, Piccadilly argues that §1146(a)’s ambiguous exemption should not be construed to diminish other claimants’ recoveries. See Howard Delivery Service, Inc. v. Zurich American Ins. Co., 547 U. S. 651, 667 (2006) (emphasizing that “provisions allowing preferences must be tightly construed”). Reading the stamp-tax exemption too narrowly, Piccadilly maintains, “ ‘is not only inconsistent with the policy of equality of distribution’ ” but also “ ‘dilutes the value of the priority for those creditors Congress intended to prefer’ ”—those with prepetition claims. Brief for Respondent 54 (quoting Howard Delivery Serv., supra, at 667). Above all, Piccadilly urges us to adopt the Court of Appeals’ maxim that “a remedial statute such as the Bankruptcy Code should be liberally construed.” 484 F. 3d, at 1304; cf. Isbrandtsen Co. v. Johnson, 343 U. S. 779, 782 (1952). In Piccadilly’s view, any ambiguity in the statutory text is overshadowed by §1146(a)’s obvious purpose: to facilitate the Chapter 11 process “through giving tax relief.” In re Jacoby-Bender, Inc., 758 F. 2d 840, 841 (CA2 1985). Piccadilly characterizes the tax on asset transfers at issue here as tantamount to a levy on the bankruptcy process itself. A stamp tax like Florida’s makes the sale of a debtor’s property more expensive and reduces the total proceeds available to satisfy the creditors’ claims, contrary to Congress’ clear intent in enacting §1146(a). What is unclear, Piccadilly argues, is why “Congress would have intended the anomaly that a transfer essential to a plan that occurs two minutes before confirmation may be taxed, but the same transfer occurring two seconds after may not.” Brief for Respondent 43. After all, interpreting §1146(a) in the manner Florida proposes would lead precisely to that result. And that, Piccadilly asserts, is “absurd” in light of §1146(a)’s policy aim—evidenced by the provision’s text and legislative history—of reducing the cost of asset transfers. In that vein, Piccadilly contends that interpreting §1146(a) to apply solely to postconfirmation transfers would undermine Chapter 11’s twin objectives of “preserving going concerns and maximizing property available to satisfy creditors.” Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U. S. 434, 453 (1999). In order to obtain the maximum value for its assets—especially assets rapidly declining in value—Piccadilly claims that a debtor often must close the sale before formal confirmation of the Chapter 11 plan. We agree with Florida that the federalism canon articulated in Sierra Summit and elsewhere obliges us to construe §1146(a)’s exemption narrowly. Piccadilly’s effort to evade the canon falls well short of the mark because reading §1146(a) in the manner Piccadilly proposes would require us to do exactly what the canon counsels against. If we recognized an exemption for preconfirmation transfers, we would in effect be “ ‘recogniz[ing] an exemption from state taxation that Congress has not clearly expressed’ ”—namely, an exemption for preconfirmation transfers. Sierra Summit, 490 U. S., at 851–852 (emphasis added); see also Swarts v. Hammer, 194 U. S. 441, 444 (1904) (reasoning that if Congress endeavored to exempt a debtor from state and local taxation, “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”). Indeed, Piccadilly proves precisely this point by resting its entire case on the premise that Congress has expressed its stamp-tax exemption in ambiguous language. Therefore, far from being inapposite, the canon is decisive in this case. The canons on which Piccadilly relies are inapposite. While we agree with Piccadilly that “provisions allowing preferences must be tightly construed,” Howard Delivery Serv., supra, at 667, §1146(a) is not a preference-granting provision. The statutory text makes no mention of preferences. Nor are we persuaded that in this case we should construe §1146(a) “liberally” to serve its ostensibly “remedial” purpose. Based on the Eleventh Circuit’s declaration that the Bankruptcy Code is a “remedial statute,” Piccadilly would stretch the disallowance well beyond what the statutory text can naturally bear. Apart from the opinion below, however, the only authority Piccadilly offers is a 1952 decision of this Court interpreting the Shipping Commissioners Act of 1872. See Brief for Respondent 54 (citing Isbrandtsen, supra, at 782). But unlike the statutory scheme in Isbrandtsen, which was “ ‘designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad,’ ” 343 U. S., at 784 (quoting Aguilar v. Standard Oil Co. of N. J., 318 U. S. 724, 728 (1943)), the Bankruptcy Code—and Chapter 11 in particular—is not a remedial statute in that sense. To the contrary, this Court has rejected the notion that “Congress had a single purpose in enacting Chapter 11.” Toibb v. Radloff, 501 U. S. 157, 163 (1991). Rather, Chapter 11 strikes a balance between a debtor’s interest in reorganizing and restructuring its debts and the creditors’ interest in maximizing the value of the bankruptcy estate. Ibid. The Code also accommodates the interests of the States in regulating property transfers by “ ‘generally [leaving] the determination of property rights in the assets of a bankrupt’s estate to state law.’ ” Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U. S. ___, ___ (2007) (slip op., at 7 ). Such interests often do not coincide, and in this case, they clearly do not. We therefore decline to construe the exemption granted by §1146(a) to the detriment of the State. As for Piccadilly’s assertion that reading §1146(a) to allow preconfirmation transfers to be taxed while exempting others moments later would amount to an “absurd” policy, we reiterate that “ ‘it is not for us to substitute our view of . . . policy for the legislation which has been passed by Congress.’ ” Hechinger, 335 F. 3d, at 256. That said, we see no absurdity in reading §1146(a) as setting forth a simple, bright-line rule instead of the complex, after-the-fact inquiry Piccadilly envisions. At bottom, we agree with the Fourth Circuit’s summation of §1146(a): “Congress struck a most reasonable balance. If a debtor is able to develop a Chapter 11 reorganization and obtain confirmation, then the debtor is to be afforded relief from certain taxation to facilitate the implementation of the reorganization plan. Before a debtor reaches this point, however, the state and local tax systems may not be subjected to federal interference.” NVR, 189 F. 3d, at 458. Lastly, to the extent the “practical realities” of Chapter 11 reorganizations are increasingly rendering postconfirmation transfers a thing of the past, see 484 F. 3d, at 1304, it is incumbent upon the Legislature, and not the Judiciary, to determine whether §1146(a) is in need of revision. See, e.g., Ali v. Federal Bureau of Prisons, 552 U. S. ___, ___ (2008) (slip op., at 14 ) (“We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable”). III The most natural reading of §1146(a)’s text, the provision’s placement within the Code, and applicable substantive canons all lead to the same conclusion: Section 1146(a) affords a stamp-tax exemption only to transfers made pursuant to a Chapter 11 plan that has been confirmed. Because Piccadilly transferred its assets before its Chapter 11 plan was confirmed by the Bankruptcy Court, it may not rely on §1146(a) to avoid Florida’s stamp taxes. Accordingly, we reverse the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 When litigation commenced in the lower courts, the stamp-tax exemption was contained in §1146(c) (2000 ed.). In 2005, Congress repealed subsections (a) and (b), and the stamp-tax exemption was recodified as §1146(a). See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, §719(b)(3), 119 Stat. 133. For simplicity, we will cite the provision as it is currently codified. Footnote 2 Chapter 11 bankruptcy proceedings ordinarily culminate in the confirmation of a reorganization plan. But in some cases, as here, a debtor sells all or substantially all its assets under §363(b)(1) (2000 ed., Supp. V) before seeking or receiving plan confirmation. In this scenario, the debtor typically submits for confirmation a plan of liquidation (rather than a traditional plan of reorganization) providing for the distribution of the proceeds resulting from the sale. Here, Piccadilly filed a Chapter 11 liquidation plan after selling substantially all its assets as a going concern. Although the central purpose of Chapter 11 is to facilitate reorganizations rather than liquidations (covered generally by Chapter 7), Chapter 11 expressly contemplates liquidations. See §1129(a)(11) (2000 ed.) (“Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan”). Footnote 3 Also meritless is Piccadilly’s argument that “under” in the phrase “under a plan confirmed under chapter . . . 11” in §365(g)(1) cannot be read to mean “subject to” because §1123(b)(2), in Piccadilly’s words, “circles back to section 365.” Brief for Respondent 39. Section 1123(b)(2) authorizes a plan to provide for the assumption, rejection, or assignment of an executory contract or unexpired lease, but requires that the plan do so in a manner consistent with the various requirements set forth throughout §365. By contrast, the phrase “under this section” in §365(g)(1) serves as a reference to §365(d)(2), which permits preconfirmation assumptions and rejections pursuant to a court order (and not, as in §1123(b)(2), pursuant to a confirmed plan).
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552.US.38
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Petitioner Gall joined an ongoing enterprise distributing the controlled substance “ecstasy” while in college, but withdrew from the conspiracy after seven months, has sold no illegal drugs since, and has used no illegal drugs and worked steadily since graduation. Three and half years after withdrawing from the conspiracy, Gall pleaded guilty to his participation. A presentence report recommended a sentence of 30 to 37 months in prison, but the District Court sentenced Gall to 36 months’ probation, finding that probation reflected the seriousness of his offense and that imprisonment was unnecessary because his voluntary withdrawal from the conspiracy and postoffense conduct showed that he would not return to criminal behavior and was not a danger to society. The Eighth Circuit reversed on the ground that a sentence outside the Federal Sentencing Guidelines range must be—and was not in this case—supported by extraordinary circumstances. Held: 1. While the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard. Pp. 7–14. (a) Because the Guidelines are now advisory, appellate review of sentencing decisions is limited to determining whether they are “reasonable,” United States v. Booker, 543 U. S. 220, and an abuse-of-discretion standard applies to appellate review of sentencing decisions. A district judge must consider the extent of any departure from the Guidelines and must explain the appropriateness of an unusually lenient or harsh sentence with sufficient justifications. An appellate court may take the degree of variance into account and consider the extent of a deviation from the Guidelines, but it may not require “extraordinary” circumstances or employ a rigid mathematical formula using a departure’s percentage as the standard for determining the strength of the justification required for a specific sentence. Such approaches come too close to creating an impermissible unreasonableness presumption for sentences outside the Guidelines range. The mathematical approach also suffers from infirmities of application. And both approaches reflect a practice of applying a heightened standard of review to sentences outside the Guidelines range, which is inconsistent with the rule that the abuse-of-discretion standard applies to appellate review of all sentencing decisions—whether inside or outside that range. Pp. 7–10. (b) A district court should begin by correctly calculating the applicable Guidelines range. The Guidelines are the starting point and initial benchmark but are not the only consideration. After permitting both parties to argue for a particular sentence, the judge should consider all of 18 U. S. C. §3353(a)’s factors to determine whether they support either party’s proposal. He may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented. If he decides on an outside-the-Guidelines sentence, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of variation. He must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. In reviewing the sentence, the appellate court must first ensure that the district court made no significant procedural errors and then consider the sentence’s substantive reasonableness under an abuse-of-discretion standard, taking into account the totality of the circumstances, including the extent of a variance from the Guidelines range, but must give due deference to the district court’s decision that the §3553(a) factors justify the variance. That the appellate court might have reasonably reached a different conclusion does not justify reversal. Pp. 11–14. 2. On abuse-of-discretion review, the Eighth Circuit failed to give due deference to the District Court’s reasoned and reasonable sentencing decision. Since the District Court committed no procedural error, the only question for the Circuit was whether the sentence was reasonable, i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported the sentence and justified a substantial deviation from the Guidelines range. The Circuit gave virtually no deference to the District Court’s decision that the variance was justified. The Circuit clearly disagreed with the District Court’s decision, but it was not for the Circuit to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. Pp. 14–21. 446 F. 3d 884, reversed. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., and Souter, J., filed concurring opinions. Thomas, J., and Alito, J., filed dissenting opinions.
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In two cases argued on the same day last Term we considered the standard that courts of appeals should apply when reviewing the reasonableness of sentences imposed by district judges. The first, Rita v. United States, 551 U. S. ___ (2007), involved a sentence within the range recommended by the Federal Sentencing Guidelines; we held that when a district judge’s discretionary decision in a particular case accords with the sentence the United States Sentencing Commission deems appropriate “in the mine run of cases,” the court of appeals may presume that the sentence is reasonable. Id., at ___ (slip op., at 11). The second case, Claiborne v. United States, involved a sentence below the range recommended by the Guidelines, and raised the converse question whether a court of appeals may apply a “proportionality test,” and require that a sentence that constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances. See Claiborne v. United States, 549 U. S. ___ (2006). We did not have the opportunity to answer this question because the case was mooted by Claiborne’s untimely death. Claiborne v. United States, 551 U. S. ___ (2007) (per curiam). We granted certiorari in the case before us today in order to reach that question, left unanswered last Term. 551 U. S. ___ (2007). We now hold that, while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences—whether inside, just outside, or significantly outside the Guidelines range—under a deferential abuse-of-discretion standard. We also hold that the sentence imposed by the experienced District Judge in this case was reasonable. I In February or March 2000, petitioner Brian Gall, a second-year college student at the University of Iowa, was invited by Luke Rinderknecht to join an ongoing enterprise distributing a controlled substance popularly known as “ecstasy.”[Footnote 1] Gall—who was then a user of ecstasy, cocaine, and marijuana—accepted the invitation. During the ensuing seven months, Gall delivered ecstasy pills, which he received from Rinderknecht, to other conspirators, who then sold them to consumers. He netted over $30,000. A month or two after joining the conspiracy, Gall stopped using ecstasy. A few months after that, in September 2000, he advised Rinderknecht and other co-conspirators that he was withdrawing from the conspiracy. He has not sold illegal drugs of any kind since. He has, in the words of the District Court, “self-rehabilitated.” App. 75. He graduated from the University of Iowa in 2002, and moved first to Arizona, where he obtained a job in the construction industry, and later to Colorado, where he earned $18 per hour as a master carpenter. He has not used any illegal drugs since graduating from college. After Gall moved to Arizona, he was approached by federal law enforcement agents who questioned him about his involvement in the ecstasy distribution conspiracy. Gall admitted his limited participation in the distribution of ecstasy, and the agents took no further action at that time. On April 28, 2004—approximately a year and a half after this initial interview, and three and a half years after Gall withdrew from the conspiracy—an indictment was returned in the Southern District of Iowa charging him and seven other defendants with participating in a conspiracy to distribute ecstasy, cocaine, and marijuana, that began in or about May 1996 and continued through October 30, 2002. The Government has never questioned the truthfulness of any of Gall’s earlier statements or contended that he played any role in, or had any knowledge of, other aspects of the conspiracy described in the indictment. When he received notice of the indictment, Gall moved back to Iowa and surrendered to the authorities. While free on his own recognizance, Gall started his own business in the construction industry, primarily engaged in subcontracting for the installation of windows and doors. In his first year, his profits were over $2,000 per month. Gall entered into a plea agreement with the Government, stipulating that he was “responsible for, but did not necessarily distribute himself, at least 2,500 grams of [ecstasy], or the equivalent of at least 87.5 kilograms of marijuana.” Id., at 25. In the agreement, the Government acknowledged that by “on or about September of 2000,” Gall had communicated his intent to stop distributing ecstasy to Rinderknecht and other members of the conspiracy. Ibid. The agreement further provided that recent changes in the Guidelines that enhanced the recommended punishment for distributing ecstasy were not applicable to Gall because he had withdrawn from the conspiracy prior to the effective date of those changes. In her presentence report, the probation officer concluded that Gall had no significant criminal history; that he was not an organizer, leader, or manager; and that his offense did not involve the use of any weapons. The report stated that Gall had truthfully provided the Government with all of the evidence he had concerning the alleged offenses, but that his evidence was not useful because he provided no new information to the agents. The report also described Gall’s substantial use of drugs prior to his offense and the absence of any such use in recent years. The report recommended a sentencing range of 30 to 37 months of imprisonment. The record of the sentencing hearing held on May 27, 2005, includes a “small flood” of letters from Gall’s parents and other relatives, his fiancé, neighbors, and representatives of firms doing business with him, uniformly praising his character and work ethic. The transcript includes the testimony of several witnesses and the District Judge’s colloquy with the Assistant United States Attorney (AUSA) and with Gall. The AUSA did not contest any of the evidence concerning Gall’s law-abiding life during the preceding five years, but urged that “the Guidelines are appropriate and should be followed,” and requested that the court impose a prison sentence within the Guidelines range. Id., at 93. He mentioned that two of Gall’s co-conspirators had been sentenced to 30 and 35 months, respectively, but upon further questioning by the District Court, he acknowledged that neither of them had voluntarily withdrawn from the conspiracy. The District Judge sentenced Gall to probation for a term of 36 months. In addition to making a lengthy statement on the record, the judge filed a detailed sentencing memorandum explaining his decision, and provided the following statement of reasons in his written judgment: “The Court determined that, considering all the factors under 18 U. S. C. 3553(a), the Defendant’s explicit withdrawal from the conspiracy almost four years before the filing of the Indictment, the Defendant’s post-offense conduct, especially obtaining a college degree and the start of his own successful business, the support of family and friends, lack of criminal history, and his age at the time of the offense conduct, all warrant the sentence imposed, which was sufficient, but not greater than necessary to serve the purposes of sentencing.” Id., at 117. At the end of both the sentencing hearing and the sentencing memorandum, the District Judge reminded Gall that probation, rather than “an act of leniency,” is a “substantial restriction of freedom.” Id., at 99, 125. In the memorandum, he emphasized: “[Gall] will have to comply with strict reporting conditions along with a three-year regime of alcohol and drug testing. He will not be able to change or make decisions about significant circumstances in his life, such as where to live or work, which are prized liberty interests, without first seeking authorization from his Probation Officer or, perhaps, even the Court. Of course, the Defendant always faces the harsh consequences that await if he violates the conditions of his probationary term.” Id., at 125. Finally, the District Judge explained why he had concluded that the sentence of probation reflected the seriousness of Gall’s offense and that no term of imprisonment was necessary: “Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life. The Defendant’s post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society. In fact, the Defendant’s post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of the Defendant’s own desire to lead a better life.” Id., at 125–126. II The Court of Appeals reversed and remanded for resentencing. Relying on its earlier opinion in United States v. Claiborne, 439 F. 3d 479 (CA8 2006), it held that a sentence outside of the Guidelines range must be supported by a justification that “ ‘ “is proportional to the extent of the difference between the advisory range and the sentence imposed.” ’ ” 446 F. 3d 884, 889 (CA8 2006) (quoting Claiborne, 439 F. 3d, at 481, in turn quoting United States v. Johnson, 427 F. 3d 423, 426–427 (CA7 2005)). Characterizing the difference between a sentence of probation and the bottom of Gall’s advisory Guidelines range of 30 months as “extraordinary” because it amounted to “a 100% downward variance,” 446 F. 3d, at 889, the Court of Appeals held that such a variance must be—and here was not—supported by extraordinary circumstances. Rather than making an attempt to quantify the value of the justifications provided by the District Judge, the Court of Appeals identified what it regarded as five separate errors in the District Judge’s reasoning: (1) He gave “too much weight to Gall’s withdrawal from the conspiracy”; (2) given that Gall was 21 at the time of his offense, the District Judge erroneously gave “significant weight” to studies showing impetuous behavior by persons under the age of 18; (3) he did not “properly weigh” the seriousness of Gall’s offense; (4) he failed to consider whether a sentence of probation would result in “unwarranted” disparities; and (5) he placed “too much emphasis on Gall’s post-offense rehabilitation.” Id., at 889–890. As we shall explain, we are not persuaded that these factors, whether viewed separately or in the aggregate, are sufficient to support the conclusion that the District Judge abused his discretion. As a preface to our discussion of these particulars, however, we shall explain why the Court of Appeals’ rule requiring “proportional” justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U. S. 220 (2005). III In Booker we invalidated both the statutory provision, 18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV), which made the Sentencing Guidelines mandatory, and §3742(e) (2000 ed. and Supp. IV), which directed appellate courts to apply a de novo standard of review to departures from the Guidelines. As a result of our decision, the Guidelines are now advisory, and appellate review of sentencing decisions is limited to determining whether they are “reasonable.” Our explanation of “reasonableness” review in the Booker opinion made it pellucidly clear that the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions. See 543 U. S., at 260–262; see also Rita, 551 U. S., at ___ (Stevens, J., concurring). It is also clear that a district judge must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications. For even though the Guidelines are advisory rather than mandatory, they are, as we pointed out in Rita, the product of careful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.[Footnote 2] Id., at ___. In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines. We reject, however, an appellate rule that requires “extraordinary” circumstances to justify a sentence outside the Guidelines range. We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence. As an initial matter, the approaches we reject come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range. See id., at ___ (slip op., at 15) (“The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness”).[Footnote 3] Even the Government has acknowledged that such a presumption would not be consistent with Booker. See Brief for United States in Rita v. United States, O. T. 2006, No. 06–5754, pp. 34–35. The mathematical approach also suffers from infirmities of application. On one side of the equation, deviations from the Guidelines range will always appear more extreme—in percentage terms—when the range itself is low, and a sentence of probation will always be a 100% departure regardless of whether the Guidelines range is 1 month or 100 years. Moreover, quantifying the variance as a certain percentage of the maximum, minimum, or median prison sentence recommended by the Guidelines gives no weight to the “substantial restriction of freedom” involved in a term of supervised release or probation. App. 95. We recognize that custodial sentences are qualitatively more severe than probationary sentences of equivalent terms. Offenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty. See United States v. Knights, 534 U. S. 112, 119 (2001) (“Inherent in the very nature of probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is entitled’ ” (quoting Griffin v. Wisconsin, 483 U. S. 868, 874 (1987))).[Footnote 4] Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. USSG §5B1.3. Most probationers are also subject to individual “special conditions” imposed by the court. Gall, for instance, may not patronize any establishment that derives more than 50% of its revenue from the sale of alcohol, and must submit to random drug tests as directed by his probation officer. App. 109. On the other side of the equation, the mathematical approach assumes the existence of some ascertainable method of assigning percentages to various justifications. Does withdrawal from a conspiracy justify more or less than, say, a 30% reduction? Does it matter that the withdrawal occurred several years ago? Is it relevant that the withdrawal was motivated by a decision to discontinue the use of drugs and to lead a better life? What percentage, if any, should be assigned to evidence that a defendant poses no future threat to society, or to evidence that innocent third parties are dependent on him? The formula is a classic example of attempting to measure an inventory of apples by counting oranges.[Footnote 5] Most importantly, both the exceptional circumstances requirement and the rigid mathematical formulation reflect a practice—common among courts that have adopted “proportional review”—of applying a heightened standard of review to sentences outside the Guidelines range. This is inconsistent with the rule that the abuse-of-discretion standard of review applies to appellate review of all sentencing decisions—whether inside or outside the Guidelines range. As we explained in Rita, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. See 551 U. S., at ___. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the §3553(a) factors to determine whether they support the sentence requested by a party.[Footnote 6] In so doing, he may not presume that the Guidelines range is reasonable. See id., at ___. He must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id., at ___. Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the §3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range. Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. Id., at ___. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court’s decision that the §3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Practical considerations also underlie this legal principle. “The sentencing judge is in a superior position to find facts and judge their import under §3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Brief for Federal Public and Community Defenders et al. as Amici Curiae 16. “The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court.” Rita, 551 U. S., at ___ (slip op., at 18). Moreover, “[d]istrict courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines sentences than appellate courts do.” Koon v. United States, 518 U. S. 81, 98 (1996).[Footnote 7] “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Id., at 113.[Footnote 8] The uniqueness of the individual case, however, does not change the deferential abuse-of-discretion standard of review that applies to all sentencing decisions. As we shall now explain, the opinion of the Court of Appeals in this case does not reflect the requisite deference and does not support the conclusion that the District Court abused its discretion. IV As an initial matter, we note that the District Judge committed no significant procedural error. He correctly calculated the applicable Guidelines range, allowed both parties to present arguments as to what they believed the appropriate sentence should be, considered all of the §3553(a) factors, and thoroughly documented his reasoning. The Court of Appeals found that the District Judge erred in failing to give proper weight to the seriousness of the offense, as required by §3553(a)(2)(A), and failing to consider whether a sentence of probation would create unwarranted disparities, as required by §3553(a)(6). We disagree. Section 3553(a)(2)(A) requires judges to consider “the need for the sentence imposed … to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” The Court of Appeals concluded that “the district court did not properly weigh the seriousness of Gall’s offense” because it “ignored the serious health risks ecstasy poses.” 446 F. 3d, at 890. Contrary to the Court of Appeals’ conclusion, the District Judge plainly did consider the seriousness of the offense. See, e.g., App. 99 (“The Court, however, is bound to impose a sentence that reflects the seriousness of joining a conspiracy to distribute MDMA or ecstasy”); id., at 122. [Footnote 9] It is true that the District Judge did not make specific reference to the (unquestionably significant) health risks posed by ecstasy, but the prosecutor did not raise ecstasy’s effects at the sentencing hearing. Had the prosecutor raised the issue, specific discussion of the point might have been in order, but it was not incumbent on the District Judge to raise every conceivably relevant issue on his own initiative. The Government’s legitimate concern that a lenient sentence for a serious offense threatens to promote disrespect for the law is at least to some extent offset by the fact that seven of the eight defendants in this case have been sentenced to significant prison terms. Moreover, the unique facts of Gall’s situation provide support for the District Judge’s conclusion that, in Gall’s case, “a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing.” Id., at 126. Section 3553(a)(6) requires judges to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The Court of Appeals stated that “the record does not show that the district court considered whether a sentence of probation would result in unwarranted disparities.” 446 F. 3d, at 890. As with the seriousness of the offense conduct, avoidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges. Since the District Judge correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities. Moreover, as we understand the colloquy between the District Judge and the AUSA, it seems that the judge gave specific attention to the issue of disparity when he inquired about the sentences already imposed by a different judge on two of Gall’s codefendants. The AUSA advised the District Judge that defendant Harbison had received a 30-month sentence and that Gooding had received 35 months. The following colloquy then occurred: “THE COURT: … You probably know more about this than anybody. How long did those two stay in the conspiracy, and did they voluntarily withdraw? “MR GRIESS: They did not. “THE COURT: They did not? “MR. GRIESS: They did not voluntarily withdraw. And they were in the conspiracy, I think, for a shorter period of time, but at the very end. “THE COURT: Okay. Thank you. “MR. GRIESS: A significant difference there, Your Honor, is that they were in the conspiracy after the guidelines changed and, therefore, were sentenced at a much higher level because of that.” App. 88. A little later Mr. Griess stated: “The last thing I want to talk about goes to sentencing disparity… . Obviously, the Court is cognizant of that and wants to avoid any unwarranted sentencing disparities.” Id., at 89. He then discussed at some length the sentence of 36 months imposed on another codefendant, Jarod Yoder, whose participation in the conspiracy was roughly comparable to Gall’s. Griess voluntarily acknowledged three differences between Yoder and Gall: Yoder was in the conspiracy at its end and therefore was sentenced under the more severe Guidelines, he had a more serious criminal history, and he did not withdraw from the conspiracy. From these facts, it is perfectly clear that the District Judge considered the need to avoid unwarranted disparities, but also considered the need to avoid unwarranted similarities among other co-conspirators who were not similarly situated. The District Judge regarded Gall’s voluntary withdrawal as a reasonable basis for giving him a less severe sentence than the three codefendants discussed with the AUSA, who neither withdrew from the conspiracy nor rehabilitated themselves as Gall had done. We also note that neither the Court of Appeals nor the Government has called our attention to a comparable defendant who received a more severe sentence. Since the District Court committed no procedural error, the only question for the Court of Appeals was whether the sentence was reasonable—i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported a sentence of probation and justified a substantial deviation from the Guidelines range. As we shall now explain, the sentence was reasonable. The Court of Appeals’ decision to the contrary was incorrect and failed to demonstrate the requisite deference to the District Judge’s decision. V The Court of Appeals gave virtually no deference to the District Court’s decision that the §3553(a) factors justified a significant variance in this case. Although the Court of Appeals correctly stated that the appropriate standard of review was abuse of discretion, it engaged in an analysis that more closely resembled de novo review of the facts presented and determined that, in its view, the degree of variance was not warranted. The Court of Appeals thought that the District Court “gave too much weight to Gall’s withdrawal from the conspiracy because the court failed to acknowledge the significant benefit Gall received from being subject to the 1999 Guidelines.”[Footnote 10] 446 F. 3d, at 889. This criticism is flawed in that it ignores the critical relevance of Gall’s voluntary withdrawal, a circumstance that distinguished his conduct not only from that of all his codefendants, but from the vast majority of defendants convicted of conspiracy in federal court. The District Court quite reasonably attached great weight to the fact that Gall voluntarily withdrew from the conspiracy after deciding, on his own initiative, to change his life. This lends strong support to the District Court’s conclusion that Gall is not going to return to criminal behavior and is not a danger to society. See 18 U. S. C. §§3553(a)(2)(B), (C). Compared to a case where the offender’s rehabilitation occurred after he was charged with a crime, the District Court here had greater justification for believing Gall’s turnaround was genuine, as distinct from a transparent attempt to build a mitigation case. The Court of Appeals thought the District Judge “gave significant weight to an improper factor” when he compared Gall’s sale of ecstasy when he was a 21-year-old adult to the “impetuous and ill-considered” actions of persons under the age of 18. 446 F. 3d, at 890. The appellate court correctly observed that the studies cited by the District Judge do not explain how Gall’s “specific behavior in the instant case was impetuous or ill-considered.” Ibid. In that portion of his sentencing memorandum, however, the judge was discussing the “character of the defendant,” not the nature of his offense. App. 122. He noted that Gall’s criminal history included a ticket for underage drinking when he was 18 years old and possession of marijuana that was contemporaneous with his offense in this case. In summary, the District Judge observed that all of Gall’s criminal history “including the present offense, occurred when he was twenty-one-years old or younger” and appeared “to stem from his addictions to drugs and alcohol.” Id., at 123. The District Judge appended a long footnote to his discussion of Gall’s immaturity. The footnote includes an excerpt from our opinion in Roper v. Simmons, 543 U. S. 551, 569 (2005), which quotes a study stating that a lack of maturity and an undeveloped sense of responsibility are qualities that “ ‘often result in impetuous and ill-considered actions.’ ” The District Judge clearly stated the relevance of these studies in the opening and closing sentences of the footnote: “Immaturity at the time of the offense conduct is not an inconsequential consideration. Recent studies on the development of the human brain conclude that human brain development may not become complete until the age of twenty-five… . [T]he recent [National Institute of Health] report confirms that there is no bold line demarcating at what age a person reaches full maturity. While age does not excuse behavior, a sentencing court should account for age when inquiring into the conduct of a defendant.” App. 123, n. 2. Given the dramatic contrast between Gall’s behavior before he joined the conspiracy and his conduct after withdrawing, it was not unreasonable for the District Judge to view Gall’s immaturity at the time of the offense as a mitigating factor, and his later behavior as a sign that he had matured and would not engage in such impetuous and ill-considered conduct in the future. Indeed, his consideration of that factor finds support in our cases. See, e.g., Johnson v. Texas, 509 U. S. 350, 367 (1993) (holding that a jury was free to consider a 19-year-old defendant’s youth when determining whether there was a probability that he would continue to commit violent acts in the future and stating that “ ‘youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage’ ” (quoting Eddings v. Oklahoma, 455 U. S. 104, 115 (1982))). Finally, the Court of Appeals thought that, even if Gall’s rehabilitation was dramatic and permanent, a sentence of probation for participation as a middleman in a conspiracy distributing 10,000 pills of ecstasy “lies outside the range of choice dictated by the facts of the case.” 446 F. 3d, at 890. If the Guidelines were still mandatory, and assuming the facts did not justify a Guidelines-based downward departure, this would provide a sufficient basis for setting aside Gall’s sentence because the Guidelines state that probation alone is not an appropriate sentence for comparable offenses.[Footnote 11] But the Guidelines are not mandatory, and thus the “range of choice dictated by the facts of the case” is significantly broadened. Moreover, the Guidelines are only one of the factors to consider when imposing sentence, and §3553(a)(3) directs the judge to consider sentences other than imprisonment. We also note that the Government did not argue below, and has not argued here, that a sentence of probation could never be imposed for a crime identical to Gall’s. Indeed, it acknowledged that probation could be permissible if the record contained different—but in our view, no more compelling—mitigating evidence. Tr. of Oral Arg. 37–38 (stating that probation could be an appropriate sentence, given the exact same offense, if “there are compelling family circumstances where individuals will be very badly hurt in the defendant’s family if no one is available to take care of them”). The District Court quite reasonably attached great weight to Gall’s self-motivated rehabilitation, which was undertaken not at the direction of, or under supervision by, any court, but on his own initiative. This also lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts. See 18 U. S. C. §§3553(a)(2)(B), (C). The Court of Appeals clearly disagreed with the District Judge’s conclusion that consideration of the §3553(a) factors justified a sentence of probation; it believed that the circumstances presented here were insufficient to sustain such a marked deviation from the Guidelines range. But it is not for the Court of Appeals to decide de novo whether the justification for a variance is sufficient or the sentence reasonable. On abuse-of-discretion review, the Court of Appeals should have given due deference to the District Court’s reasoned and reasonable decision that the §3553(a) factors, on the whole, justified the sentence. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. Footnote 1 Ecstasy is sometimes called “MDMA” because its scientific name is “methylenedioxymethamphetamine.” App. 24, 118. Footnote 2 Notably, not all of the Guidelines are tied to this empirical evidence. For example, the Sentencing Commission departed from the empirical approach when setting the Guidelines range for drug offenses, and chose instead to key the Guidelines to the statutory mandatory minimum sentences that Congress established for such crimes. See United States Sentencing Commission, Guidelines Manual §1A1.1 (Nov. 2006) (USSG). This decision, and its effect on a district judge’s authority to deviate from the Guidelines range in a particular drug case, is addressed in Kimbrough v. United States, post, p. ___. Footnote 3 Several Courts of Appeals had rejected such a presumption of unreasonableness even prior to our decision in Rita. See, e.g., United States v. Howard, 454 F. 3d 700, 703 (CA7 2006) (“Although a sentence outside the range does not enjoy the presumption of reasonableness that one within the range does, it does not warrant a presumption of unreasonableness”); United States v. Matheny, 450 F. 3d 633, 642 (CA6 2006) (“[T]his court’s holding that sentences within the advisory guideline range are presumptively reasonable does not mean that sentences outside of that range are presumptively unreasonable”); United States v. Myers, 439 F. 3d 415, 417 (CA8 2006) (“We have determined that a sentence imposed within the guidelines range is presumptively reasonable. While it does not follow that a sentence outside the guidelines range is unreasonable, we review a district court’s decision to depart from the appropriate guidelines range for abuse of discretion” (citation omitted)). Footnote 4 See also Advisory Council of Judges of National Council on Crime and Delinquency, Guides for Sentencing 13–14 (1957) (“Probation is not granted out of a spirit of leniency… . As the Wickersham Commission said, probation is not merely ‘letting an offender off easily’ ”); 1 N. Cohen, The Law of Probation and Parole §7:9 (2d ed. 1999) (“[T]he probation or parole conditions imposed on an individual can have a significant impact on both that person and society… . Often these conditions comprehensively regulate significant facets of their day-to-day lives … . They may become subject to frequent searches by government officials, as well as to mandatory counseling sessions with a caseworker or psychotherapist”). Footnote 5 Notably, when the Court of Appeals explained its disagreement with the District Judge’s decision in this case, it made no attempt to quantify the strength of any of the mitigating circumstances. Footnote 6 Section 3553(a) lists seven factors that a sentencing court must consider. The first factor is a broad command to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U. S. C. §3553(a)(1). The second factor requires the consideration of the general purposes of sentencing, including: “the need for the sentence imposed— “(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; “(B) to afford adequate deterrence to criminal conduct; “(C) to protect the public from further crimes of the defendant; and “(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” §3553(a)(2). The third factor pertains to “the kinds of sentences available,” §3553(a)(3); the fourth to the Sentencing Guidelines; the fifth to any relevant policy statement issued by the Sentencing Commission; the sixth to “the need to avoid unwarranted sentence disparities,” §3553(a)(6); and the seventh to “the need to provide restitution to any victim,” §3553(a)(7). Preceding this list is a general directive to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes” of sentencing described in the second factor. §3553(a) (2000 ed., Supp. V). The fact that §3553(a) explicitly directs sentencing courts to consider the Guidelines supports the premise that district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process. Footnote 7 District judges sentence, on average, 117 defendants every year. Administrative Office of United States Courts, 2006 Federal Court Management Statistics 167. The District Judge in this case, Judge Pratt, has sentenced over 990 offenders over the course of his career. United States v. Likens, 464 F. 3d 823, 827, n. 1 (CA8 2006) (Bright, J., dissenting). Only a relatively small fraction of these defendants appeal their sentence on reasonableness grounds. See Koon, 518 U. S., at 98 (“In 1994, for example, 93.9% of Guidelines cases were not appealed”); Likens, 464 F. 3d, at 827, n. 1 (Bright, J., dissenting) (noting that the District Judge had sentenced hundreds of defendants and that “[w]e have reviewed only a miniscule number of those cases”); cf. United States Sentencing Commission, 2006 Sourcebook of Federal Sentencing Statistics 135–152. Footnote 8 It is particularly revealing that when we adopted an abuse-of-discretion standard in Koon, we explicitly rejected the Government’s argument that “de novo review of departure decisions is necessary ‘to protect against unwarranted disparities arising from the differing sentencing approaches of individual district judges.’ ” 518 U. S., at 97 (quoting Brief for United States in O. T. 1995, No. 94–1664, p. 12). Even then we were satisfied that a more deferential abuse-of-discretion standard could successfully balance the need to “reduce unjustified disparities” across the Nation and “consider every convicted person as an individual.” 518 U. S., at 113. Footnote 9 The District Judge also gave specific consideration to the fact—not directly taken into account by the Guidelines—that Gall netted $30,000 from his participation in the conspiracy. He noted, however: “[T]his fact can be viewed from different perspectives. On the one hand, [Gall] should be punished for profiting from a criminal scheme… . On the other hand, [Gall], who is from a working-class family and has few financial resources, decided to turn his back on what, for him, was a highly profitable venture… . The Court can not consider, for the purposes of sentencing, one side of the financial aspect of the offense conduct without considering the other.” App. 123–124, n. 3. Footnote 10 The Court of Appeals explained that under the current Guidelines, which treat ecstasy more harshly, Gall’s base offense level would have been 32, eight levels higher than the base offense level imposed under the 1999 Guidelines. Footnote 11 Specifically, probation is not recommended under the Guidelines when the applicable Guidelines range is outside Zone A of the sentencing table as it is here. USSG §5B1.1.
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554.US.353
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At petitioner Giles’ murder trial, the court allowed prosecutors to introduce statements that the murder victim had made to a police officer responding to a domestic violence call. Giles was convicted. While his appeal was pending, this Court held that the Sixth Amendment’s Confrontation Clause gives defendants the right to cross-examine witnesses who give testimony against them, except in cases where an exception to the confrontation right was recognized at the founding. Crawford v. Washington, 541 U. S. 36, 53–54. The State Court of Appeal concluded that the Confrontation Clause permitted the trial court to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing. It concluded that Giles had forfeited his right to confront the victim’s testimony because it found Giles had committed the murder for which he was on trial—an intentional criminal act that made the victim unavailable to testify. The State Supreme Court affirmed on the same ground. Held: The California Supreme Court’s theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding. Pp. 3–20; 22–24. (a) Common-law courts allowed the introduction of statements by an absent witness who was “detained” or “kept away” by “means or procurement” of the defendant. Cases and treatises indicate that this rule applied only when the defendant engaged in conduct designed to prevent the witness from testifying. Pp. 4–7. (b) The manner in which this forfeiture rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant wrongfully caused the absence of a witness, but had not done so to prevent the witness from testifying, unconfronted testimony was excluded unless it fell within the separate common-law exception to the confrontation requirement for statements made by speakers who were both on the brink of death and aware that they were dying. Pp. 7–11. (c) Not only was California’s proposed exception to the confrontation right plainly not an “exceptio[n] established at the time of the founding,” Crawford, supra, at 54; it is not established in American jurisprudence since the founding. No case before 1985 applied forfeiture to admit statements outside the context of conduct designed to prevent a witness from testifying. The view that the exception applies only when the defendant intends to make a witness unavailable is also supported by modern authorities, such as Federal Rule of Evidence 804(b)(6), which “codifies the forfeiture doctrine,” Davis v. Washington, 547 U. S.813, 833. Pp. 11–14. (d) The dissent’s contention that no testimony would come in at common law under a forfeiture theory unless it was confronted is not supported by the cases. In any event, if the dissent’s theory were true, it would not support a broader forfeiture exception but would eliminate the forfeiture exception entirely. Previously confronted testimony by an unavailable witness is always admissible, wrongful procurement or not. See Crawford, supra, at 68. Pp. 15–20. (e) Acts of domestic violence are often intended to dissuade a victim from resorting to outside help. A defendant’s prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant’s subsequent act causing the witness’s absence, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. Here, the state courts did not consider Giles’ intent, which they found irrelevant under their interpretation of the forfeiture doctrine. They are free to consider intent on remand. Pp. 23–24. 40 Cal. 4th 833, 152 P. 3d 433, vacated and remanded. Scalia, J., delivered the opinion of the Court, except as to Part II–D–2. Roberts, C. J., and Thomas and Alito, JJ., joined that opinion in full, and Souter and Ginsburg, JJ., joined as to all but Part II–D–2. Thomas, J., and Alito, J., filed concurring opinions. Souter, J., filed an opinion concurring in part, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens and Kennedy, JJ., joined.
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except as to Part II–D–2. We consider whether a defendant forfeits his Sixth Amendment right to confront a witness against him when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial. I On September 29, 2002, petitioner Dwayne Giles shot his ex-girlfriend, Brenda Avie, outside the garage of his grandmother’s house. No witness saw the shooting, but Giles’ niece heard what transpired from inside the house. She heard Giles and Avie speaking in conversational tones. Avie then yelled “Granny” several times and a series of gunshots sounded. Giles’ niece and grandmother ran outside and saw Giles standing near Avie with a gun in his hand. Avie, who had not been carrying a weapon, had been shot six times. One wound was consistent with Avie’s holding her hand up at the time she was shot, another was consistent with her having turned to her side, and a third was consistent with her having been shot while lying on the ground. Giles fled the scene after the shooting. He was apprehended by police about two weeks later and charged with murder. At trial, Giles testified that he had acted in self-defense. Giles described Avie as jealous, and said he knew that she had once shot a man, that he had seen her threaten people with a knife, and that she had vandalized his home and car on prior occasions. He said that on the day of the shooting, Avie came to his grandmother’s house and threatened to kill him and his new girlfriend, who had been at the house earlier. He said that Avie had also threatened to kill his new girlfriend when Giles and Avie spoke on the phone earlier that day. Giles testified that after Avie threatened him at the house, he went into the garage and retrieved a gun, took the safety off, and started walking toward the back door of the house. He said that Avie charged at him, and that he was afraid she had something in her hand. According to Giles, he closed his eyes and fired several shots, but did not intend to kill Avie. Prosecutors sought to introduce statements that Avie had made to a police officer responding to a domestic-violence report about three weeks before the shooting. Avie, who was crying when she spoke, told the officer that Giles had accused her of having an affair, and that after the two began to argue, Giles grabbed her by the shirt, lifted her off the floor, and began to choke her. According to Avie, when she broke free and fell to the floor, Giles punched her in the face and head, and after she broke free again, he opened a folding knife, held it about three feet away from her, and threatened to kill her if he found her cheating on him. Over Giles’ objection, the trial court admitted these statements into evidence under a provision of California law that permits admission of out-of-court statements describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial and the prior statements are deemed trustworthy. Cal. Evid. Code Ann. §1370 (West Supp. 2008). A jury convicted Giles of first-degree murder. He appealed. While his appeal was pending, this Court decided in Crawford v. Washington, 541 U. S. 36, 53–54 (2004), that the Confrontation Clause requires that a defendant have the opportunity to confront the witnesses who give testimony against him, except in cases where an exception to the confrontation right was recognized at the time of the founding. The California Court of Appeal held that the admission of Avie’s unconfronted statements at Giles’ trial did not violate the Confrontation Clause as construed by Crawford because Crawford recognized a doctrine of forfeiture by wrongdoing. 19 Cal. Rptr. 3d 843, 847 (2004) (officially depublished). It concluded that Giles had forfeited his right to confront Avie because he had committed the murder for which he was on trial, and because his intentional criminal act made Avie unavailable to testify. The California Supreme Court affirmed on the same ground. 40 Cal. 4th 833, 837, 152 P. 3d 433, 435 (2007). We granted certiorari. 552 U. S. ___ (2008). II The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” The Amendment contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine him. Crawford, 541 U. S., at 68. The State does not dispute here, and we accept without deciding, that Avie’s statements accusing Giles of assault were testimonial. But it maintains (as did the California Supreme Court) that the Sixth Amendment did not prohibit prosecutors from introducing the statements because an exception to the confrontation guarantee permits the use of a witness’s unconfronted testimony if a judge finds, as the judge did in this case, that the defendant committed a wrongful act that rendered the witness unavailable to testify at trial. We held in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” Id., at 54. We therefore ask whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court is a founding-era exception to the confrontation right. A We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted. See id., at 56, n. 6, 62. The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying. See, e.g., King v. Woodcock, 1 Leach 500, 501–504, 168 Eng. Rep. 352, 353–354 (1789); State v. Moody, 3 N. C. 31 (Super. L. & Eq. 1798); United States v. Veitch, 28 F. Cas. 367, 367–368 (No. 16,614) (CC DC 1803); King v. Commonwealth, 4 Va. 78, 80–81 (Gen. Ct. 1817). Avie did not make the unconfronted statements admitted at Giles’ trial when she was dying, so her statements do not fall within this historic exception. A second common-law doctrine, which we will refer to as forfeiture by wrongdoing, permitted the introduction of statements of a witness who was “detained” or “kept away” by the “means or procurement” of the defendant. See, e.g., Lord Morley’s Case, 6 How. St. Tr. 769, 771 (H. L. 1666) (“detained”); Harrison’s Case, 12 How. St. Tr. 833, 851 (H. L. 1692) (“made him keep away”); Queen v. Scaife, 117 Q. B. 238, 242, 117 Eng. Rep. 1271, 1273 (K. B. 1851) (“kept away”); see also 2 W. Hawkins, Pleas of the Crown 425 (4th ed. 1762) (hereinafter Hawkins) (same); T. Peake, Compendium of the Law of Evidence 62 (2d ed. 1804) (“sent” away); 1 G. Gilbert, Law of Evidence 214 (1791) (“detained and kept back from appearing by the means and procurement of the prisoner”). The doctrine has roots in the 1666 decision in Lord Morley’s Case, at which judges concluded that a witness’s having been “detained by the means or procurement of the prisoner,” provided a basis to read testimony previously given at a coroner’s inquest. 6 How. St. Tr., at 770–771. Courts and commentators also concluded that wrongful procurement of a witness’s absence was among the grounds for admission of statements made at bail and committal hearings conducted under the Marian statutes, which directed justices of the peace to take the statements of felony suspects and the persons bringing the suspects before the magistrate, and to certify those statements to the court, Crawford, supra, at 43–44; J. Langbein, Prosecuting Crime in the Renaissance 10–12, 16–20 (1974). See 2 Hawkins 429. This class of confronted statements was also admissible if the witness who made them was dead or unable to travel. Ibid. The terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying. The rule required the witness to have been “kept back” or “detained” by “means or procurement” of the defendant. Although there are definitions of “procure” and “procurement” that would merely require that a defendant have caused the witness’s absence, other definitions would limit the causality to one that was designed to bring about the result “procured.” See 2 N. Webster, An American Dictionary of the English Language (1828) (defining “procure” as “to contrive and effect” (emphasis added)); ibid. (defining “procure” as “to get; to gain; to obtain; as by request, loan, effort, labor or purchase”); 12 Oxford English Dictionary 559 (2d ed. 1989) (def. I(3)) (defining “procure” as “[t]o contrive or devise with care (an action or proceeding); to endeavour to cause or bring about (mostly something evil) to or for a person”). Similarly, while the term “means” could sweep in all cases in which a defendant caused a witness to fail to appear, it can also connote that a defendant forfeits confrontation rights when he uses an intermediary for the purpose of making a witness absent. See 9 id., at 516 (“[A] person who intercedes for another or uses influence in order to bring about a desired result”); N. Webster, An American Dictionary of the English Language 822 (1869) (“That through which, or by the help of which, an end is attained”). Cases and treatises of the time indicate that a purpose-based definition of these terms governed. A number of them said that prior testimony was admissible when a witness was kept away by the defendant’s “means and contrivance.” See 1 J. Chitty, A Practical Treatise on the Criminal Law 81 (1816) (“kept away by the means and contrivance of the prisoner”); S. Phillipps, A Treatise on the Law of Evidence 165 (1814) (“kept out of the way by the means and contrivance of the prisoner”); Drayton v. Wells, 10 S. C. L. 409, 411 (S. C. 1819) (“kept away by the contrivance of the opposite party”). This phrase requires that the defendant have schemed to bring about the absence from trial that he “contrived.” Contrivance is commonly defined as the act of “inventing, devising or planning,” 1 Webster, supra, at 47, “ingeniously endeavoring the accomplishment of anything,” “the bringing to pass by planning, scheming, or stratagem,” or “[a]daption of means to an end; design, intention,” 3 Oxford English Dictionary, supra, at 850.[Footnote 1] An 1858 treatise made the purpose requirement more explicit still, stating that the forfeiture rule applied when a witness “had been kept out of the way by the prisoner, or by some one on the prisoner’s behalf, in order to prevent him from giving evidence against him.” E. Powell, The Practice of the Law of Evidence 166 (1st ed. 1858) (emphasis added). The wrongful-procurement exception was invoked in a manner consistent with this definition. We are aware of no case in which the exception was invoked although the defendant had not engaged in conduct designed to prevent a witness from testifying, such as offering a bribe. B The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded unless it was confronted or fell within the dying-declaration exception. Prosecutors do not appear to have even argued that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial. Consider King v. Woodcock. William Woodcock was accused of killing his wife, Silvia, who had been beaten and left near death. A Magistrate took Silvia Woodcock’s account of the crime, under oath, and she died about 48 hours later. The judge stated that “[g]reat as a crime of this nature must always appear to be, yet the inquiry into it must proceed upon the rules of evidence.” 1 Leach, at 500, 168 Eng. Rep., at 352. Aside from testimony given at trial in the presence of the prisoner, the judge said, there were “two other species which are admitted by law: The one is the dying declaration of a person who has received a fatal blow; the other is the examination of a prisoner, and the depositions of the witnesses who may be produced against him” taken under the Marian bail and committal statutes. Id., at 501, 168 Eng. Rep., at 352–353 (footnote omitted). Silvia Woodcock’s statement could not be admitted pursuant to the Marian statutes because it was unconfronted—the defendant had not been brought before the examining Magistrate and “the prisoner therefore had no opportunity of contradicting the facts it contains.” Id., at 502, 168 Eng. Rep., at 353. Thus, the statements were admissible only if the witness “apprehended that she was in such a state of mortality as would inevitably oblige her soon to answer before her Maker for the truth or falsehood of her assertions.” Id., at 503, 168 Eng. Rep., at 353–354 (footnote omitted). Depending on the account one credits, the court either instructed the jury to consider the statements only if Woodcock was “in fact under the apprehension of death,” id., at 504, 168 Eng. Rep., at 354, or determined for itself that Woodcock was “quietly resigned and submitting to her fate” and admitted her statements into evidence, 1 E. East, Pleas of the Crown 356 (1803). King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (1791), applied the same test to exclude unconfronted statements by a murder victim. George Dingler was charged with killing his wife Jane, who suffered multiple stab wounds that left her in the hospital for 12 days before she died. The day after the stabbing, a Magistrate took Jane Dingler’s deposition—as in Woodcock, under oath—“of the facts and circumstances which had attended the outrage committed upon her.” 2 Leach, at 561, 168 Eng. Rep., at 383. George Dingler’s attorney argued that the statements did not qualify as dying declarations and were not admissible Marian examinations because they were not taken in the presence of the prisoner, with the result that the defendant did not “have, as he is entitled to have, the benefit of cross-examination.” Id., at 562, 168 Eng. Rep., at 384. The prosecutor agreed, but argued the deposition should still be admitted because “it was the best evidence that the nature of the case would afford.” Id., at 563, 168 Eng. Rep., at 384. Relying on Woodcock, the court “refused to receive the examination into evidence.” Id., at 563, 168 Eng. Rep., at 384. Many other cases excluded victims’ statements when there was insufficient evidence that the witness was aware he was about to die. See Thomas John’s Case, 1 East 357, 358 (P. C. 1790); Welbourn’s Case, 1 East 358, 360 (P. C. 1792); United States v. Woods, 28 F. Cas. 762, 763 (No. 16,760) (CC DC 1834); Lewis v. State, 17 Miss. 115, 120 (1847); Montgomery v. State, 11 Ohio 424, 425–426 (1842); Nelson v. State, 26 Tenn. 542, 543 (1847); Smith v. State, 28 Tenn. 9, 23 (1848). Courts in all these cases did not even consider admitting the statements on the ground that the defendant’s crime was to blame for the witness’s absence—even when the evidence establishing that was overwhelming. The reporter in Woodcock went out of his way to comment on the strength of the case against the defendant: “The evidence, independent of the information or declarations of the deceased, was of a very pressing and urgent nature against the prisoner.” 1 Leach, at 501, 168 Eng. Rep., at 352. Similarly, in Smith v. State, supra, the evidence that the defendant had caused the victim’s death included, but was not limited to, the defendant’s having obtained arsenic from a local doctor a few days before his wife became violently ill; the defendant’s paramour testifying at trial that the defendant admitted to poisoning his wife; the defendant’s having asked a physician “whether the presence of arsenic could be discovered in the human stomach a month after death”; and, the answer to that inquiry apparently not having been satisfactory, the defendant’s having tried to hire a person to burn down the building containing his wife’s body. Id., at 10–11. If the State’s reading of common law were correct, the dying declarations in these cases and others like them would have been admissible. Judges and prosecutors also failed to invoke forfeiture as a sufficient basis to admit unconfronted statements in the cases that did apply the dying-declarations exception. This failure, too, is striking. At a murder trial, presenting evidence that the defendant was responsible for the victim’s death would have been no more difficult than putting on the government’s case in chief. Yet prosecutors did not attempt to obtain admission of dying declarations on wrongful-procurement-of-absence grounds before going to the often considerable trouble of putting on evidence to show that the crime victim had not believed he could recover. See, e.g., King v. Commonwealth, 4 Va., at 80–81 (three witnesses called to testify on the point); Gibson v. Commonwealth, 4 Va. 111, 116–117 (Gen. Ct. 1817) (testimony elicited from doctor and witness); Anthony v. State, 19 Tenn. 265, 278–279 (1838) (doctor questioned about expected fatality of victim’s wound and about victim’s demeanor). The State offers another explanation for the above cases. It argues that when a defendant committed some act of wrongdoing that rendered a witness unavailable, he forfeited his right to object to the witness’s testimony on confrontation grounds, but not on hearsay grounds. See Brief for Respondent 23–24. No case or treatise that we have found, however, suggested that a defendant who committed wrongdoing forfeited his confrontation rights but not his hearsay rights. And the distinction would have been a surprising one, because courts prior to the founding excluded hearsay evidence in large part because it was unconfronted. See, e.g., 2 Hawkins 606 (6th ed. 1787); 2 M. Bacon, A New Abridgment of the Law 313 (1736). As the plurality said in Dutton v. Evans, 400 U. S. 74, 86 (1970), “[i]t seems apparent that the Sixth Amendment’s Confrontation Clause and the evidentiary hearsay rule stem from the same roots.” The State and the dissent note that common-law authorities justified the wrongful-procurement rule by invoking the maxim that a defendant should not be permitted to benefit from his own wrong. See, e.g., G. Gilbert, Law of Evidence 140–141 (1756) (if a witness was “detained and kept back from appearing by the means and procurement” testimony would be read because a defendant “shall never be admitted to shelter himself by such evil Practices on the Witness, that being to give him Advantage of his own Wrong”). But as the evidence amply shows, the “wrong” and the “evil Practices” to which these statements referred was conduct designed to prevent a witness from testifying. The absence of a forfeiture rule covering this sort of conduct would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them. There is nothing mysterious about courts’ refusal to carry the rationale further. The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to “dispensing with jury trial because a defendant is obviously guilty.” Crawford, 541 U. S., at 62. C Not only was the State’s proposed exception to the right of confrontation plainly not an “exceptio[n] established at the time of the founding,” id., at 54; it is not established in American jurisprudence since the founding. American courts never—prior to 1985—invoked forfeiture outside the context of deliberate witness tampering. This Court first addressed forfeiture in Reynolds v. United States, 98 U. S. 145 (1879), where, after hearing testimony that suggested the defendant had kept his wife away from home so that she could not be subpoenaed to testify, the trial court permitted the government to introduce testimony of the defendant’s wife from the defendant’s prior trial. See id., at 148–150. On appeal, the Court held that admission of the statements did not violate the right of the defendant to confront witnesses at trial, because when a witness is absent by the defendant’s “wrongful procurement,” the defendant “is in no condition to assert that his constitutional rights have been violated” if “their evidence is supplied in some lawful way.” Id., at 158. Reynolds invoked broad forfeiture principles to explain its holding. The decision stated, for example, that “[t]he Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts,” ibid., and that the wrongful-procurement rule “has its foundation” in the principle that no one should be permitted to take advantage of his wrong, and is “the outgrowth of a maxim based on the principles of common honesty,” id., at 159. Reynolds relied on these maxims (as the common-law authorities had done) to be sure. But it relied on them (as the common-law authorities had done) to admit prior testimony in a case where the defendant had engaged in wrongful conduct designed to prevent a witness’s testimony. The Court’s opinion indicated that it was adopting the common-law rule. It cited leading common-law cases—Lord Morley’s Case, Harrison’s Case, and Scaife—described itself as “content with” the “long-established usage” of the forfeiture principle, and admitted prior confronted statements under circumstances where admissibility was open to no doubt under Lord Morley’s Case. Reynolds, supra, at 158–159. If the State’s rule had an historical pedigree in the common law or even in the 1879 decision in Reynolds, one would have expected it to be routinely invoked in murder prosecutions like the one here, in which the victim’s prior statements inculpated the defendant. It was never invoked in this way. The earliest case identified by the litigants and amici curiae which admitted unconfronted statements on a forfeiture theory without evidence that the defendant had acted with the purpose of preventing the witness from testifying was decided in 1985. United States v. Rouco, 765 F. 2d 983 (CA11). In 1997, this Court approved a Federal Rule of Evidence, entitled “Forfeiture by wrongdoing,” which applies only when the defendant “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Fed. Rule of Evid. 804(b)(6). We have described this as a rule “which codifies the forfeiture doctrine.” Davis v. Washington, 547 U. S. 813, 833 (2006). Every commentator we are aware of has concluded the requirement of intent “means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.” 5 C. Mueller & L. Kirkpatrick, Federal Evidence §8:134, p. 235 (3d ed. 2007); 5 J. Weinstein & M. Berger, Weinstein’s Federal Evidence §804.03[7][b], p. 804–32 (J. McLaughlin ed., 2d ed. 2008); 2 S. Brown, McCormick on Evidence 176 (6th ed. 2006).[Footnote 2] The commentators come out this way because the dissent’s claim that knowledge is sufficient to show intent is emphatically not the modern view. See 1 W. LaFave, Substantive Criminal Law §5.2, p. 340 (2d ed. 2003). In sum, our interpretation of the common-law forfeiture rule is supported by (1) the most natural reading of the language used at common law; (2) the absence of common-law cases admitting prior statements on a forfeiture theory when the defendant had not engaged in conduct designed to prevent a witness from testifying; (3) the common law’s uniform exclusion of unconfronted inculpatory testimony by murder victims (except testimony given with awareness of impending death) in the innumerable cases in which the defendant was on trial for killing the victim, but was not shown to have done so for the purpose of preventing testimony; (4) a subsequent history in which the dissent’s broad forfeiture theory has not been applied. The first two and the last are highly persuasive; the third is in our view conclusive. D 1 The dissent evades the force of that third point by claiming that no testimony would come in at common law based on a forfeiture theory unless it was confronted. It explains the exclusion of murder victims’ testimony by arguing that wrongful procurement was understood to be a basis for admission of Marian depositions—which the defendant would have had the opportunity to confront—but not for the admission of unconfronted testimony. See post, at 15. That explanation is not supported by the cases. In Harrison’s Case, the leading English case finding wrongful procurement, the witness’s statements were admitted without regard to confrontation. An agent of the defendant had attempted to bribe a witness, who later disappeared under mysterious circumstances. The prosecutor contended that he had been “spirited, or withdrawn from us, by a gentleman that said he came to [the witness] from the prisoner, and desired him to be kind to the prisoner.” 12 How. St. Tr., at 851. The court allowed the witness’s prior statements before the coroner to be read, id., at 852, although there was no reason to think the defendant would have been present at the prior examination.[Footnote 3] The reasoning of the common-law authorities reinforces the conclusion that the wrongful-procurement rule did not depend on prior confrontation. The judge in Harrison’s Case, after being told that “Mr. Harrison’s agents or friends have, since the last sessions, made or conveyed away a young man that was a principal evidence against him,” declared that if this were proved, “it will no way conduce to Mr. Harrison’s advantage.” Id., at 835–836. Similarly, a leading treatise’s justification of the use of statements from coroner’s inquests when a witness was “detained and kept back from appearing by the means and procurement” of the defendant was that the defendant “shall never be admitted to shelter himself by such evil Practices on the Witness, that being to give him Advantage of his own Wrong.” G. Gilbert, Law of Evidence 140 (1756). But if the defendant could keep out unconfronted prior testimony of a wrongfully detained witness he would profit from “such evil Practices.” While American courts understood the admissibility of statements made at prior proceedings (including coroner’s inquests like the one in Harrison’s Case) to turn on prior opportunity for cross-examination as a general matter, see Crawford, 541 U. S., at 47, n. 2, no such limit was applied or expressed in early wrongful-procurement cases. In Rex v. Barber, 1 Root 76 (Conn. Super. Ct. 1775), “[o]ne White, who had testified before the justice and before the grand-jury against Barber, and minutes taken of his testimony, was sent away by one Bullock, a friend of Barber’s, and by his instigation; so that he could not be had to testify before the petit-jury. The court admitted witnesses to relate what White had before testified.” Two leading evidentiary treatises and a Delaware case reporter cite that case for the proposition that grand jury statements were admitted on a wrongful-procurement theory. See Phillipps, Treatise on Evidence, at 200, n. (a); T. Peake, Compendium of the Law of Evidence 91, n. (m) (American ed. 1824); State v. Lewis, 1 Del. Cas. 608, 609, n. 1 (Ct. Quarter Sess. 1818). (Of course the standard practice since approximately the 17th century has been to conduct grand jury proceedings in secret, without confrontation, in part so that the defendant does not learn the State’s case in advance. S. Beale, W. Bryson, J. Felman, & M. Elston, Grand Jury Law and Practice §5.2 (2d ed. 2005); see also 8 J. Wigmore Evidence §2360, pp. 728–735 (J. McNaughton rev. 1961)).[Footnote 4] The Georgia Supreme Court’s articulation of the forfeiture rule similarly suggests that it understood forfeiture to be a basis for admitting unconfronted testimony. The court wrote that Lord Morley’s Case established that if a witness “who had been examined by the Crown, and was then absent, was detained by the means or procurement of the prisoner,” “then the examination should be read” into evidence. Williams v. State, 19 Ga. 402, 403 (1856). Its rule for all cases in which the witness “had been examined by the Crown” carried no confrontation limit, and indeed, the court adopted the rule from Lord Morley’s Case which involved not Marian examinations carrying a confrontation requirement, but coroner’s inquests that lacked one. The leading American case on forfeiture of the confrontation right by wrongful procurement was our 1879 decision in Reynolds. That case does not set forth prior confrontation as a requirement for the doctrine’s application, and begins its historical analysis with a full description of the rule set forth in Lord Morley’s Case, which itself contained no indication that the admitted testimony must have been previously confronted. It followed that description with a citation of Harrison’s Case—which, like Lord Morley’s Case, applied wrongful procurement to coroner’s inquests, not confronted Marian examinations—saying that the rule in those cases “seems to have been recognized as the law of England ever since.” 98 U. S., at 158. The opinion’s description of the forfeiture rule is likewise unconditioned by any requirement of prior confrontation: “The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he kept away. . . . [The Constitution] grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.” Ibid. There is no mention in this paragraph of a need for prior confrontation, even though if the Court believed such a limit applied, the phrase “their evidence is supplied” would more naturally have read “their previously confronted evidence is supplied.” Crawford reaffirmed this understanding by citing Reynolds for a forfeiture exception to the confrontation right. 541 U. S., at 54. And what Reynolds and Crawford described as the law became a seeming holding of this Court in Davis, which, after finding an absent witness’s unconfronted statements introduced at trial to have been testimonial, and after observing that “one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation,” 547 U. S., at 833, remanded with the instruction that “[t]he Indiana courts may (if they are asked) determine on remand whether . . . a claim of forfeiture is properly raised and, if so, whether it is meritorious,” id. at 834. Although the case law is sparse, in light of these decisions and the absence of even a single case declining to admit unconfronted statements of an absent witness on wrongful-procurement grounds when the defendant sought to prevent the witness from testifying, we are not persuaded to displace the understanding of our prior cases that wrongful procurement permits the admission of prior unconfronted testimony. But the parsing of cases aside, the most obvious problem with the dissent’s theory that the forfeiture rule applied only to confronted testimony is that it amounts to self-immolation. If it were true, it would destroy not only our case for a narrow forfeiture rule, but the dissent’s case for a broader one as well. Prior confronted statements by witnesses who are unavailable are admissible whether or not the defendant was responsible for their unavailability. Id., at 68. If the forfeiture doctrine did not admit unconfronted prior testimony at common law, the conclusion must be, not that the forfeiture doctrine requires no specific intent in order to render unconfronted testimony available, but that unconfronted testimony is subject to no forfeiture doctrine at all.[Footnote 5] 2 Having destroyed its own case, the dissent issues a thinly veiled invitation to overrule Crawford and adopt an approach not much different from the regime of Ohio v. Roberts, 448 U. S. 56 (1980), under which the Court would create the exceptions that it thinks consistent with the policies underlying the confrontation guarantee, regardless of how that guarantee was historically understood. The “basic purposes and objectives” of forfeiture doctrine, it says, require that a defendant who wrongfully caused the absence of a witness be deprived of his confrontation rights, whether or not there was any such rule applicable at common law. Post, at 4. If we were to reason from the “basic purposes and objectives” of the forfeiture doctrine, we are not at all sure we would come to the dissent’s favored result. The common-law forfeiture rule was aimed at removing the otherwise powerful incentive for defendants to intimidate, bribe, and kill the witnesses against them—in other words, it is grounded in “the ability of courts to protect the integrity of their proceedings.” Davis, 547 U. S., at 834. The boundaries of the doctrine seem to us intelligently fixed so as to avoid a principle repugnant to our constitutional system of trial by jury: that those murder defendants whom the judge considers guilty (after less than a full trial, mind you, and of course before the jury has pronounced guilt) should be deprived of fair-trial rights, lest they benefit from their judge-determined wrong.[Footnote 6] Since it is most certainly not the norm that trial rights can be “forfeited” on the basis of a prior judicial determination of guilt, the dissent must go far afield to argue even by analogy for its forfeiture rule. See post, at 5 (discussing common-law doctrine that prohibits the murderer from collecting insurance on the life of his victim, or an inheritance from the victim’s estate); post, at 6 (noting that many criminal statutes punish a defendant regardless of his purpose). These analogies support propositions of which we have no doubt: States may allocate property rights as they see fit, and a murderer can and should be punished, without regard to his purpose, after a fair trial. But a legislature may not “punish” a defendant for his evil acts by stripping him of the right to have his guilt in a criminal proceeding determined by a jury, and on the basis of evidence the Constitution deems reliable and admissible. The larger problem with the dissent’s argument, however, is that the guarantee of confrontation is no guarantee at all if it is subject to whatever exceptions courts from time to time consider “fair.” It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values. The Sixth Amendment seeks fairness indeed—but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen. It “does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.” Crawford, supra, at 54.[Footnote 7] E The dissent closes by pointing out that a forfeiture rule which ignores Crawford would be particularly helpful to women in abusive relationships—or at least particularly helpful in punishing their abusers. Not as helpful as the dissent suggests, since only testimonial statements are excluded by the Confrontation Clause. Statements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules, which are free to adopt the dissent’s version of forfeiture by wrongdoing. In any event, we are puzzled by the dissent’s decision to devote its peroration to domestic abuse cases. Is the suggestion that we should have one Confrontation Clause (the one the Framers adopted and Crawford described) for all other crimes, but a special, improvised, Confrontation Clause for those crimes that are frequently directed against women? Domestic violence is an intolerable offense that legislatures may choose to combat through many means—from increasing criminal penalties to adding resources for investigation and prosecution to funding awareness and prevention campaigns. But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State’s arsenal. The domestic-violence context is, however, relevant for a separate reason. Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. This is not, as the dissent charges, post, at 25, nothing more than “knowledge-based intent.” (Emphasis deleted.) The state courts in this case did not consider the intent of the defendant because they found that irrelevant to application of the forfeiture doctrine. This view of the law was error, but the court is free to consider evidence of the defendant’s intent on remand. * * * We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter. The judgment of the California Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The dissent asserts that a defendant could have “contrived, i.e., devised or planned … to murder a victim” without the purpose of keeping the victim away from trial. See post, at 12 (opinion of Breyer, J.). But that would not be contriving to keep the witness away. The dissent further suggests that these authorities are irrelevant because “the relevant phrase” in Lord Morley’s Case itself is “ ‘by means or procurement’ ” of the defendant and means “may, or may not, refer to an absence that the defendant desired, as compared to an absence that the defendant caused.” Post, at 12–13 (emphasis added). But the authorities we cited resolve this ambiguity in favor of purpose by substituting for the “means or procurement” of Lord Morley’s Case either “contrivance” or “means and contrivance.” (Emphasis added.) Footnote 2 Only a single state evidentiary code appears to contain a forfeiture rule broader than our holding in this case (and in Crawford) allow. Seven of the 12 States that recognize wrongdoing as grounds for forfeiting objection to out-of-court statements duplicate the language of the federal forfeiture provision that requires purpose, see Del. Rule Evid. 804(b)(6) (2001); Ky. Rule Evid. 804(b)(5) (2004); N. D. Rule Evid. 804(b)(6) (2007); Pa. Rule Evid. 804(b)(6) (2005); Vt. Rule Evid. 804(b)(6) (2004); see also Tenn. Rule Evid. 804(b)(6) (2003) (identical except that it excludes mention of acquiescence); Mich. Rule Evid. 804(b)(6) (2008) (substitutes “engaged in or encouraged” for “engaged or acquiesced in”). Two others require “purpose” by their terms. Ohio Rule Evid. 804(B)(6) (2008); Cal. Evid. Code Ann. §1350 (West Supp. 2008). Two of the three remaining forfeiture provisions require the defendant to have “procured” the unavailability of a witness, Haw. Rule 804(b)(7) (2007); Md. Cts. & Jud. Proc. Code Ann. §10–901 (Lexis 2006)—which, as we have discussed, is a term traditionally used in the forfeiture context to require intent. Maryland’s rule has thus been described as “requir[ing] that the judge must find that [the] wrongdoing or misconduct was undertaken with the intent of making the witness unavailable to testify.” 6A L. McLain, Maryland Evidence, State and Federal §804(6):1, p. 230 (West Supp. 2007–2008). These rules cast more than a little doubt on the dissent’s assertion that the historic forfeiture rule creates intolerable problems of proof. The lone forfeiture exception whose text reaches more broadly than the rule we adopt is an Oregon rule adopted in 2005. See 2005 Ore. Laws p. 1232, Ch. 458 (S. B. 287). Footnote 3 Wrongful procurement was also described as grounds for admitting unconfronted testimony in Fenwick’s Case, 13 How. St. Tr. 537 (H. C. 1696), a parliamentary attainder proceeding. Although many speakers argued for admission of unconfronted testimony simply because Parliament was not bound by the rules of evidence for felony cases, see Crawford v. Washington, 541 U. S. 36, 46 (2004), it was also argued that witness tampering could be a basis for admitting unconfronted statements even in common-law felony trials: “[W]here persons do stand upon their lives, accused for crimes, if it appears to the court that the prisoner hath, by fraudulent and indirect means, procured a person that hath given information against him to a proper magistrate, to withdraw himself, so that he cannot give evidence as regularly as they used to do; in that case his information hath been read; which, I suppose, with humble submission, is this case . . . .” 13 How. St. Tr., at 594 (remarks of Lovel). The dissent responds that in most circumstances in which a witness had given information against a defendant before “ ‘a proper magistrate,’ ” the testimony would have been confronted. Post, at 20. Perhaps so, but the speaker was arguing that the wrongful-procurement exception applied in “this case”—Fenwick’s Case, in which the testimony was unconfronted, see 13 How. St. Tr., at 591–592. Footnote 4 Three commentators writing more than a century after the Barber decision, said, without explanation, that they understood the case to have admitted only confronted testimony at a preliminary examination. W. Best, The Principles of the Law of Evidence 473, n. (e) (American ed. 1883); J. Stephen, A Digest of the Law of Evidence 161 (1902); 2 J. Bishop, New Criminal Procedure §1197, p. 1024 (2d ed. 1913). We know of no basis for that understanding. The report of the case does not limit the admitted testimony to statements that were confronted. Footnote 5 The dissent attempts to reconcile its approach with Crawford by saying the wrongful-procurement cases used language “broad enough” to reach every case in which a defendant committed wrongful acts that caused the absence of a victim, and that there was therefore an “‘exception” “established at the time of the founding,’ ” post, at 3, reaching all such misconduct. But an exception to what? The dissent contends that it was not an exception to confrontation. Were that true, it would be the end of the Crawford inquiry. Footnote 6 The dissent identifies one circumstance—and only one—in which a court may determine the outcome of a case before it goes to the jury: A judge may determine the existence of a conspiracy in order to make incriminating statements of co-conspirators admissible against the defendant under Federal Rule of Evidence 801(d)(2)(E). Bourjaily v. United States, 483 U. S. 171 (1987), held that admission of the evidence did not violate the Confrontation Clause because it “falls within a firmly rooted hearsay exception”—the test under Ohio v. Roberts, 448 U. S. 56, 66 (1980), the case that Crawford overruled. In fact it did not violate the Confrontation Clause for the quite different reason that it was not (as an incriminating statement in furtherance of the conspiracy would probably never be) testimonial. The co-conspirator hearsay rule does not pertain to a constitutional right and is in fact quite unusual. We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent. Footnote 7 The dissent also implies that we should not adhere to Crawford because the confrontation guarantee limits the evidence a State may introduce without limiting the evidence a defendant may introduce. See post, at 9. That is true. Just as it is true that the State cannot decline to provide testimony harmful to its case or complain of the lack of a speedy trial. The asymmetrical nature of the Constitution’s criminal-trial guarantees is not an anomaly, but the intentional conferring of privileges designed to prevent criminal conviction of the innocent. The State is at no risk of that.
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553.US.242
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If the parties consent, a federal magistrate judge may preside over the voir dire and jury selection in a felony criminal trial. Peretz v. United States, 501 U. S. 923, 933. Before petitioner’s federal trial on felony drug charges, his counsel consented to the Magistrate Judge’s presiding over jury selection. Petitioner was not asked for his own consent. After the Magistrate Judge supervised voir dire without objection, a District Judge presided at trial, and the jury returned a guilty verdict on all counts. Petitioner contended for the first time on appeal that it was error not to obtain his own consent to the Magistrate Judge’s voir dire role. The Fifth Circuit affirmed the convictions, concluding, inter alia, that the right to have a district judge preside over voir dire could be waived by counsel. Held: Express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the Federal Magistrates Act, 28 U. S. C. §636(b)(3), which states: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” Under Gomez v. United States, 490 U. S. 858, 870, 875–876, and Peretz, supra, at 933, 935–936, such “additional duties” include presiding at voir dire if the parties consent, but not if there is an objection. Generally, where there is a full trial, there are various points at which rights either can be asserted or waived. This Court has indicated that some of these rights require the defendant’s own consent to waive. See, e.g., New York v. Hill, 528 U. S. 110, 114–115. The Court held in Hill, however, that an attorney, acting without indication of particular consent from his client, could waive his client’s statutory right to a speedy trial because “[s]cheduling matters are plainly among those for which agreement by counsel generally controls.” Ibid. Similar to the scheduling matter in Hill, acceptance of a magistrate judge at the jury selection phase is a tactical decision well suited for the attorney’s own decision. The presiding judge has significant discretion over jury selection both as to substance—the questions asked—and tone—formal or informal—and the judge’s approach may be relevant in light of the approach of the attorney, who may decide whether to accept a magistrate judge based in part on these factors. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation that the client might not understand and that might distract from more pressing matters as the attorney seeks to prepare the best defense. Petitioner argues unconvincingly that the decision to have a magistrate judge for voir dire is a fundamental choice, cf. Hill, supra, at 114, or, at least, raises a question of constitutional significance so that the Act should be interpreted to require explicit consent. Serious concerns about the Act’s constitutionality are not present here, and petitioner concedes that magistrate judges are capable of competent and impartial performance when presiding over jury selection. Gomez, supra, at 876, distinguished. Pp. 2–12. 483 F. 3d 390, affirmed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Souter, Ginsburg, Breyer, and Alito, JJ., joined. Scalia, J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion.
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If the parties consent, federal magistrate judges may preside over the voir dire and selection of prospective jurors in a felony criminal trial. Peretz v. United States, 501 U. S. 923, 933 (1991). This case presents the question whether it suffices for counsel alone to consent to the magistrate judge’s role in presiding over voir dire and jury selection or whether the defendant must give his or her own consent. Homero Gonzalez was charged in the United States District Court for the Southern District of Texas on five felony drug offense counts. He is the petitioner here. At the outset of jury selection, the parties appeared before a Magistrate Judge. The Magistrate Judge asked the attorneys to approach the bench. After they complied, the Magistrate Judge said: “I need to ask the parties at this time if they are going to consent to having the United States Magistrate Judge proceed in assisting in the jury selection of this case.” App. 16. Petitioner’s counsel responded: “Yes, your Honor, we are.” Ibid. The Magistrate Judge asked if petitioner was present and if he needed an interpreter. Petitioner’s counsel answered yes to both questions. Petitioner was not asked if he consented to the Magistrate Judge’s presiding. The record does not permit us to infer this or even to infer that petitioner knew there was a right to be waived. The Magistrate Judge then supervised voir dire and jury selection. Petitioner made no objections to the Magistrate Judge’s rulings or her conduct of the proceedings. A District Judge presided at the ensuing jury trial, and the jury returned a verdict of guilty on all counts. Petitioner appealed, contending, for the first time, that it was error not to obtain his own consent to the Magistrate Judge’s presiding at voir dire. The United States Court of Appeals for the Fifth Circuit affirmed the convictions. The court concluded petitioner could not show the error was plain and, furthermore, there was no error at all. It held the right to have an Article III judge preside over voir dire could be waived by petitioner’s counsel. 483 F. 3d 390, 394 (2007). The Courts of Appeals differ on this issue. Compare ibid., with United States v. Maragh, 174 F. 3d 1202, 1206 (CA11 1999) (requiring personal and explicit consent from the defendant); see also United States v. Desir, 273 F. 3d 39, 44 (CA1 2001) (magistrate judge may conduct jury selection unless the defendant or his attorney registers an objection). We granted certiorari. 551 U. S. ___ (2007). We agree that there was no error and hold that petitioner’s counsel had full authority to consent to the Magistrate Judge’s role. The Federal Magistrates Act, 28 U. S. C. §631 et seq. (2000 ed. and Supp. V), permits district courts to assign designated functions to magistrate judges. For example, magistrate judges are authorized to: issue orders concerning release or detention of persons pending trial; take acknowledgments, affidavits, and depositions; and enter sentences for petty offenses. §636(a) (2000 ed. and Supp. V). They also may hear and determine, when designated to do so, any pretrial matter pending before the district court, with the exception of certain specified motions. Magistrate judges may also conduct hearings and propose recommendations for those motions, applications for post-trial criminal relief, and conditions of confinement petitions. §636(b)(1) (2000 ed.). If the parties consent, they may conduct misdemeanor criminal trials and civil trials. §§636(a)(3) and (c)(1). The statutory provision of direct applicability in the present case is §636(b)(3). It states: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The general, nonspecific terms of this paragraph, preceded by text that sets out permissible duties in more precise terms, constitute a residual or general category that must not be interpreted in terms so expansive that the paragraph overshadows all that goes before. In two earlier cases the Court considered the question of magistrate judges presiding over the jury selection process in felony trials. In Gomez v. United States, 490 U. S. 858 (1989), the District Judge delegated the task of selecting a jury to a Federal Magistrate Judge. Defense counsel objected, but the objection was overruled. The Court noted that “[a] critical limitation on [the magistrate judge’s] expanded jurisdiction is consent,” id., at 870, and held that presiding, over an objection, at the preliminary selection phase of a jury trial in felony cases is not among the additional duties that a magistrate judge may assume, id., at 875–876. In Peretz v. United States, supra, the Court again considered whether a magistrate judge could preside over voir dire in a felony case. In that instance, however, defendant’s counsel, upon being asked by the District Court at a pretrial conference (with the defendant present) if there was any objection to having jury selection before a magistrate judge, responded, “ ‘I would love the opportunity.’ ” Id., at 925. Defense counsel later advised the Magistrate Judge that the defendant consented to the process. The Court clarified that in a felony trial neither the Act nor Article III forbids supervision of voir dire by a magistrate judge if both parties consent. Id., at 935–936. Taken together, Gomez and Peretz mean that “the additional duties” the statute permits the magistrate judge to undertake include presiding at voir dire and jury selection provided there is consent but not if there is an objection. We now consider whether the consent can be given by counsel acting on behalf of the client but without the client’s own express consent. At first reading it might seem that our holding here is dictated by the holding in Peretz. In Peretz, it would appear the accused was aware of the colloquy between the District Judge and defense counsel and the formal waiver before the Magistrate Judge. On this premise Peretz might be read narrowly to hold that a defendant may signal consent by failing to object; and indeed, the petitioner here seeks to distinguish Peretz on this ground. Brief for Petitioner 41–42. We decide this case, however, on the assumption that the defendant did not hear, or did not understand, the waiver discussions. This addresses what, at least in petitioner’s view, Peretz did not. It should be noted that we do not have before us an instance where a defendant instructs the lawyer or advises the court in an explicit, timely way that he or she demands that a district judge preside in this preliminary phase. There are instances in federal criminal proceedings where the procedural requisites for consent are specified and a right cannot be waived except with a defendant’s own informed consent. Under Federal Rule of Criminal Procedure 11(b), for example, the district court is required, as a precondition to acceptance of a guilty plea, to inform the defendant in person of the specified rights he or she may claim in a full criminal trial and then verify that the plea is voluntary by addressing the defendant. The requirement is satisfied by a colloquy between judge and defendant, reviewing all of the rights listed in Rule 11. Statutes may also address this subject. Under 18 U. S. C. §3401(b), for example, a magistrate judge may preside over the whole trial and sentencing in a misdemeanor case but only with the express, personal consent of the defendant. The provision requires that the magistrate judge “carefully explain to the defendant that he has a right to trial, judgment, and sentencing by a district judge and that he may have a right to trial by jury before a district judge or magistrate judge. The magistrate judge may not proceed to try the case unless the defendant, after such explanation, expressly consents to be tried before the magistrate judge and expressly and specifically waives trial, judgment, and sentencing by a district judge. Any such consent and waiver shall be made in writing or orally on the record.” The controlling statute in this case has a different design, however. Title 28 U. S. C. §636(b)(3) does not state that consent to preside over felony voir dire must be granted by following a procedure of similar clarity. As a general matter, where there is a full trial there are various points in the pretrial and trial process when rights either can be asserted or waived; and there is support in our cases for concluding that some of these rights cannot be waived absent the defendant’s own consent. Whether the personal consent must be explicit and on the record or can be determined from a course of conduct may be another matter, but for now it suffices to note that we have acknowledged that some rights cannot be waived by the attorney alone. See New York v. Hill, 528 U. S. 110, 114–115 (2000). Citing some of our precedents on point, the Court in Hill gave this capsule discussion: “What suffices for waiver depends on the nature of the right at issue. ‘[W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.’ United States v. Olano, 507 U. S. 725, 733 (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson v. Zerbst, 304 U. S. 458, 464–465 (1938) (right to counsel); Brookhart v. Janis, 384 U. S. 1, 7–8 (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. ‘Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial.’ Taylor v. Illinois, 484 U. S. 400, 417–418 (1988). As to many decisions pertaining to the conduct of the trial, the defendant is ‘deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney.” ’ Link v. Wabash R. Co., 370 U. S. 626, 634 (1962) (quoting Smith v. Ayer, 101 U. S. 320, 326 (1880)). Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 U. S. 745, 751 (1983), what evidentiary objections to raise, see Henry v. Mississippi, 379 U. S. 443, 451 (1965), and what agreements to conclude regarding the admission of evidence, see United States v. McGill, 11 F. 3d 223, 226–227 (CA1 1993). Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last.” Ibid. The issue in Hill was whether the attorney, acting without indication of particular consent from his client, could waive his client’s statutory right to a speedy trial pursuant to the Interstate Agreement on Detainers. The Court held that the attorney’s statement, without any showing of the client’s explicit consent, could waive the speedy trial right: “Scheduling matters are plainly among those for which agreement by counsel generally controls.” Id., at 115. Giving the attorney control of trial management matters is a practical necessity. “The adversary process could not function effectively if every tactical decision required client approval.” Taylor v. Illinois, 484 U. S. 400, 418 (1988). The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. See Powell v. Alabama, 287 U. S. 45, 68–69 (1932); ABA Standards for Criminal Justice, Defense Function 4–5.2, Commentary, p. 202 (3d ed. 1993) (“Many of the rights of an accused, including constitutional rights, are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile”). Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote. In exercising professional judgment, moreover, the attorney draws upon the expertise and experience that members of the bar should bring to the trial process. In most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume. See Jones v. Barnes, 463 U. S. 745, 751 (1983); see also Tollett v. Henderson, 411 U. S. 258, 267–268 (1973); cf. ABA Standards, supra, at 202 (“Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge’s charge while the client ‘plucks at the attorney’s sleeve’ offering gratuitous suggestions”). To hold that every instance of waiver requires the personal consent of the client himself or herself would be impractical. Similar to the scheduling matter in Hill, acceptance of a magistrate judge at the jury selection phase is a tactical decision that is well suited for the attorney’s own decision. Under Rule 24 of the Federal Rules of Criminal Procedure, the presiding judge has significant discretion over the structure of voir dire. The judge may ask questions of the jury pool or, as in this case, allow the attorneys for the parties to do so. Fed. Rule Crim. Proc. 24(a); App. 20. A magistrate judge’s or a district judge’s particular approach to voir dire both in substance—the questions asked—and in tone—formal or informal—may be relevant in light of the attorney’s own approach. The attorney may decide whether to accept the magistrate judge based in part on these factors. As with other tactical decisions, requiring personal, on-the-record approval from the client could necessitate a lengthy explanation the client might not understand at the moment and that might distract from more pressing matters as the attorney seeks to prepare the best defense. For these reasons we conclude that express consent by counsel suffices to permit a magistrate judge to preside over jury selection in a felony trial, pursuant to the authorization in §636(b)(3). Our holding is not inconsistent with reading other precedents to hold that some basic trial choices are so important that an attorney must seek the client’s consent in order to waive the right. See, e.g., Florida v. Nixon, 543 U. S. 175, 187 (2004) (identifying the choices “ ‘to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal’ ” as examples (quoting Jones, supra, at 751)). Petitioner argues that the decision to have a magistrate judge rather than an Article III judge preside at jury selection is a fundamental choice, cf. Hill, 528 U. S., at 114, or, at least, raises a question of constitutional significance so that we should interpret the Act to require an explicit personal statement of consent before the magistrate judge can proceed with jury selection. We conclude otherwise. Under the avoidance canon, “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.’ ” Harris v. United States, 536 U. S. 545, 555 (2002) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909)). The canon, however, does not apply unless there are “serious concerns about the statute’s constitutionality.” Harris, supra, at 555; see also Reno v. Flores, 507 U. S. 292, 314, n. 9 (1993). Those concerns are not present here. Petitioner concedes that a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection. Reply Brief for Petitioner 12–13; see also Peretz, 501 U. S., at 935 (“The Act evinces a congressional belief that magistrates are well qualified to handle matters of similar importance to jury selection”). The Act contains some features to ensure impartiality. See, e.g., 28 U. S. C. §§631(i) (establishing requirements for removal), 632 (limiting concurrent employment), 634(b) (providing salary protection during the term). And “ ‘the district judge—insulated by life tenure and irreducible salary—is waiting in the wings, fully able to correct errors.’ ” Peretz, supra, at 938 (quoting United States v. Raddatz, 447 U. S. 667, 686 (1980) (Blackmun, J., concurring)). Here petitioner made no objections to the rulings by the Magistrate Judge. Had objections been made, nothing in the record or the rules indicates that the District Judge could not have ruled on the issues, all with no delay or prejudice to any trial that had commenced. See Peretz, supra, at 935, n. 12, 939. These factors support our determination that consent of counsel suffices to allow a magistrate judge to supervise voir dire. This is not a case where the magistrate judge is asked to preside or make determinations after the trial has commenced and it is arguably difficult or disruptive for a district judge to review any objections that might have been made to the magistrate judge’s rulings. Petitioner notes that Peretz considered supervision over entire civil and misdemeanor trials comparable to presiding over voir dire at a felony trial. 501 U. S., at 933. It follows, he argues, that §636(b)(3) must require, as does 18 U. S. C. §3401(b), express personal consent by the defendant before a magistrate judge may preside over voir dire. But it is not obvious that Congress would have thought these matters required the same form of consent. Aside from the fact that the statutory text is different, there are relevant differences between presiding over a full trial and presiding over voir dire. Were petitioner correct, one would think the Act would require at least the same form of consent to authorize a magistrate judge to preside over either a civil or a misdemeanor trial (which Peretz also deemed to be of comparable importance). Our interpretation of the Act indicates otherwise. Compare §3401(b), with Roell v. Withrow, 538 U. S. 580, 590 (2003) (concluding that parties may authorize a full-time magistrate judge to preside over a civil trial via implied consent). Petitioner argues that our view of the issue should be informed by Gomez’s conclusion that having a magistrate judge during jury selection without consent is structural error, not subject to harmless-error review. See 490 U. S., at 876. The exemption of certain errors from harmless-error review “recognizes that some errors necessarily render a trial fundamentally unfair.” Rose v. Clark, 478 U. S. 570, 577 (1986); see also id., at 577–578. In petitioner’s view, Gomez establishes that the issue in this case is of sufficient gravity or concern that personal consent must be required. The Court held in Gomez that imposition of a magistrate judge over objection was structural error, violating the basic right to a trial conducted at all critical stages by a judicial officer with appropriate jurisdiction. 490 U. S., at 876. It does not follow, however, that this structural aspect requires an insistence on personal consent. Here, jurisdiction turns on consent; and for the reasons discussed above an attorney, acting on the client’s behalf, can make an informed decision to allow the magistrate judge to exercise the jurisdiction Congress permits. Although a criminal defendant may demand that an Article III judge preside over the selection of a jury, the choice to do so reflects considerations more significant to the realm of the attorney than to the accused. Requiring the defendant to consent to a magistrate judge only by way of an on-the-record personal statement is not dictated by precedent and would burden the trial process, with little added protection for the defendant. Pursuant to 28 U. S. C. §636(b)(3) a magistrate judge may preside over jury examination and jury selection only if the parties, or the attorneys for the parties, consent. Consent from an attorney will suffice. We do not have before us, and we do not address, an instance where the attorney states consent but the party by express and timely objection seeks to override his or her counsel. We need not decide, moreover, if consent may be inferred from a failure by a party and his or her attorney to object to the presiding by a magistrate judge. These issues are not presented here. The judgment of the Court of Appeals is affirmed. It is so ordered.
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554.US.237
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Petitioner Greenlaw was convicted of seven drug and firearms charges and was sentenced to imprisonment for 442 months. In calculating this sentence, the District Court made an error. Overlooking this Court’s controlling decision in Deal v. United States, 508 U. S. 129, 132–137, interpreting 18 U. S. C. §924(c)(1)(C)(i), and over the Government’s objection, the District Court imposed a 10-year sentence on a count that carried a 25-year mandatory minimum term. Greenlaw appealed urging, inter alia, that the appropriate sentence for all his convictions was 15 years. The Government neither appealed nor cross-appealed. The Eighth Circuit found no merit in any of Greenlaw’s arguments, but went on to consider whether his sentence was too low. The court acknowledged that the Government, while it had objected to the trial court’s error at sentencing, had elected not to seek alteration of Greenlaw’s sentence on appeal. Nonetheless, relying on the “plain-error rule” stated in Federal Rule of Criminal Procedure 52(b), the Court of Appeals ordered the District Court to enlarge Greenlaw’s sentence by 15 years, yielding a total prison term of 662 months. Held: Absent a Government appeal or cross-appeal, the Eighth Circuit could not, on its own initiative, order an increase in Greenlaw’s sentence. Pp. 5–17. (a) In both civil and criminal cases, in the first instance and on appeal, courts follow the principle of party presentation, i.e., the parties frame the issues for decision and the courts generally serve as neutral arbiters of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant’s rights. See Castro v. United States, 540 U. S. 375, 381–383. The cross-appeal rule, pivotal in this case, is both informed by, and illustrative of, the party presentation principle. Under that rule, it takes a cross-appeal to justify a remedy in favor of an appellee. See McDonough v. Dannery, 3 Dall. 188. This Court has called the rule “inveterate and certain,” Morley Constr. Co. v. Maryland Casualty Co., 300 U. S. 185, 191, and has in no case ordered an exception to it, El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 480. No exception is warranted here. Congress has specified that when a United States Attorney files a notice of appeal with respect to a criminal sentence, “[t]he Government may not further prosecute [the] appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.” 18 U. S. C. §3742(b). This provision gives the top representatives of the United States in litigation the prerogative to seek or forgo appellate correction of sentencing errors, however plain they may be. Pp. 5–8. (b) The Eighth Circuit held that the plain-error rule, Fed. Rule Crim. Proc. 52(b), authorized it to order the sentence enhancement sU. S.onte. Nothing in the text or history of Rule 52(b), or in this Court’s decisions, suggests that the plain-error rule was meant to override the cross-appeal requirement. In every case in which correction of a plain error would result in modifying a judgment to the advantage of a party who did not seek this Court’s review, the Court has invoked the cross-appeal rule to bar the correction. See, e.g., Chittenden v. Brewster, 2 Wall. 191; Strunk v. United States, 412 U. S. 434. Even if it would be proper for an appeals court to initiate plain-error review in some cases, sentencing errors that the Government has refrained from pursuing would not fit the bill. In §3742(b), Congress assigned to leading Department of Justice officers responsibility for determining when Government pursuit of a sentencing appeal is in order. Rule 52(b) does not invite appellate court interference with the assessment of those officers. Pp. 8–10. (c) Amicus curiae, invited by the Court to brief and argue the case in support of the Court of Appeals’ judgment, links argument based on Rule 52(b) to similar argument based on 28 U. S. C. §2106. For substantially the same reasons that Rule 52(b) does not override the cross-appeal rule, §2106 does not do so either. P. 10. (d) Amicus also argues that 18 U. S. C. §3742, which governs appellate review of criminal sentences, overrides the cross-appeal rule for sentences “imposed in violation of law,” §3742(e). Amicus’ construction of §3742 is novel and complex, but ultimately unpersuasive. At the time §3742 was enacted, the cross-appeal rule was a solidly grounded rule of appellate practice. Congress had crafted explicit exceptions to the cross-appeal rule in earlier statutes governing sentencing appeals, i.e., the Organized Crime Control Act of 1970 and the Controlled Substances Act of 1970. When Congress repealed those exceptions and enacted §3742, it did not similarly express in the text of §3742 any exception to the cross-appeal rule. This drafting history suggests that Congress was aware of the cross-appeal rule and framed §3742 expecting that the new provision would operate in harmony with it. Pp. 10–13. (e) In increasing Greenlaw’s sentence sU. S.onte, the Eighth Circuit did not advert to the procedural rules setting firm deadlines for launching appeals and cross-appeals. See Fed. Rules App. Proc. 3(a)(1), 4(b)(1)(B)(ii), 4(b)(4), 26(b). The strict time limits on notices of appeal and cross-appeal serve, as the cross-appeal rule does, the interests of the parties and the legal system in fair warning and finality. The time limits would be undermined if an appeals court could modify a judgment in favor of a party who filed no notice of appeal. In a criminal prosecution, moreover, the defendant would appeal at his peril, with nothing to alert him that, on his own appeal, his sentence would be increased until the appeals court so decreed. Pp. 13–15. (f) Nothing in this opinion requires courts to modify their current practice in “sentencing package cases” involving multicount indictments and a successful attack on some but not all of the counts of conviction. The appeals court, in such cases, may vacate the entire sentence on all counts so that the trial court can reconfigure the sentencing plan. On remand, trial courts have imposed a sentence on the remaining counts longer than the sentence originally imposed on those particular counts, but yielding an aggregate sentence no longer than the aggregate sentence initially imposed. This practice is not at odds with the cross-appeal rule, which stops appellate judges from adding years to a defendant’s sentence on their own initiative. In any event, this is not a “sentencing package” case. Greenlaw was unsuccessful on all his appellate issues. The Eighth Circuit, therefore, had no occasion to vacate his sentence and no warrant, in the absence of a cross-appeal, to order the addition of 15 years to his sentence. Pp. 15–16. 481 F. 3d 601, vacated and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ., joined. Breyer, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Stevens, J., joined, and in which Breyer, J., joined as to Parts I, II, and III.
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This case concerns the role of courts in our adversarial system. The specific question presented: May a United States Court of Appeals, acting on its own initiative, order an increase in a defendant’s sentence? Petitioner Michael J. Greenlaw was convicted of various offenses relating to drugs and firearms, and was sentenced to imprisonment for 442 months. He appealed urging, inter alia, that his sentence was unreasonably long. After rejecting all of Greenlaw’s arguments, the Court of Appeals determined, without Government invitation, that the applicable law plainly required a prison sentence 15 years longer than the term the trial court had imposed. Accordingly, the appeals court instructed the trial court to increase Greenlaw’s sentence to 622 months. We hold that, absent a Government appeal or cross-appeal, the sentence Greenlaw received should not have been increased. We therefore vacate the Court of Appeals’ judgment. I Greenlaw was a member of a gang that, for years, controlled the sale of crack cocaine in a southside Minneapolis neighborhood. See United States v. Carter, 481 F. 3d 601, 604 (CA8 2007) (case below). To protect their drug stash and to prevent rival dealers from moving into their territory, gang members carried and concealed numerous weapons. See id., at 605. For his part in the operation, Greenlaw was charged, in the United States District Court for the District of Minnesota, with eight offenses; after trial, he was found guilty on seven of the charges. App. to Pet. for Cert. 16a–17a. Among Greenlaw’s convictions were two for violating 18 U. S. C. §924(c)(1)(A), which prohibits carrying a firearm during and in relation to a crime of violence or a drug trafficking crime: His first §924(c) conviction was for carrying a firearm in connection with a crime committed in 1998; his second, for both carrying and discharging a firearm in connection with a crime committed in 1999. App. to Pet. for Cert. 17a. A first conviction for violating §924(c) carries a mandatory minimum term of 5 years, if the firearm is simply carried. §924(c)(1)(A)(i). If the firearm is also discharged, the mandatory minimum increases to 10 years. §924(c)(1)(A)(iii). For “a second or subsequent conviction,” however, whether the weapon is only carried or discharged as well, the mandatory minimum jumps to 25 years. §924(c)(1)(C)(i). Any sentence for violating §924(c), moreover, must run consecutively to “any other term of imprisonment,” including any other conviction under §924(c). §924(c)(1)(D)(ii). At sentencing, the District Court made an error. Over the Government’s objection, the court held that a §924(c) conviction does not count as “second or subsequent” when it is “charged in the same indictment” as the defendant’s first §924(c) conviction. App. 59, 61–62. The error was plain because this Court had held, in Deal v. United States, 508 U. S. 129 (1993), that when a defendant is charged in the same indictment with more than one offense qualifying for punishment under §924(c), all convictions after the first rank as “second or subsequent,” see id., at 132–137. As determined by the District Court, Greenlaw’s sentence included 262 months (without separately counting sentences that ran concurrently) for all his convictions other than the two under §924(c). For the first §924(c) offense, the court imposed a 5-year sentence in accord with §924(c)(1)(A)(i). As to the second §924(c) conviction, the District Court rejected the Government’s request for the 25-year minimum prescribed in §924(c)(1)(C) for “second or subsequent” offenses; instead, it imposed the 10-year term prescribed in §924(c)(1)(A)(iii) for first-time offenses.[Footnote 1] The total sentence thus calculated came to 442 months. Greenlaw appealed to the United States Court of Appeals for the Eighth Circuit, urging, inter alia, that the appropriate total sentence for all his crimes was 15 years. See 481 F. 3d, at 607. The Court of Appeals found no merit in any of Greenlaw’s arguments. Id., at 606–607. Although the Government did not appeal or cross-appeal, id., at 608, it did note, on brief and at oral argument, the District Court’s error: Greenlaw’s sentence should have been 15 years longer than the 442 months imposed by the District Court, the Government observed, because his second §924(c) conviction called for a 25-year (not a 10-year) mandatory minimum consecutive sentence. The Government made the observation that the sentence was 15 years too short only to counter Greenlaw’s argument that it was unreasonably long. See App. 84–86; Recording of Oral Arg. in United States v. Carter, No. 05–3391, (CA8, Sept. 26, 2006), at 16:53–19:04, available at http://www.ca8.uscourts.gov/oralargs/oaFrame.html (as visited June 13, 2008). Having refrained from seeking correction of the District Court’s error by pursuing its own appeal, the Government simply urged that Greenlaw’s sentence should be affirmed. The Court of Appeals acknowledged that the Government, while objecting at sentencing to the trial court’s erroneous reading of §924(c)(1)(C), had elected to seek no appellate court alteration of Greenlaw’s sentence. 481 F. 3d, at 608. Relying on the “plain-error rule” stated in Federal Rule of Criminal Procedure 52(b), however, the appeals court held that it had discretion to raise and correct the District Court’s error on its own initiative. 481 F. 3d, at 608–609. The Court of Appeals therefore vacated the sentence and instructed the District Court “to impose the [statutorily mandated] consecutive minimum sentence of 25 years.” Id., at 611. Petitioning for rehearing and rehearing en banc, Greenlaw asked the Eighth Circuit to adopt the position advanced by the Seventh Circuit in United States v. Rivera, 411 F. 3d 864 (2005). App. 95. “By deciding not to take a cross-appeal,” the Seventh Circuit stated, “the United States has ensured that [the defendant’s] sentence cannot be increased.” 411 F. 3d, at 867. The Eighth Circuit denied rehearing without an opinion. App. to Pet. for Cert. 28a. On remand, as instructed by the Court of Appeals, the District Court increased Greenlaw’s sentence by 15 years, yielding a total prison term of 622 months. App. 103–104, 109. Greenlaw petitioned for certiorari noting a division among the Circuits on this question: When a defendant unsuccessfully challenges his sentence as too high, may a court of appeals, on its own initiative, increase the sentence absent a cross-appeal by the Government? In response, the Government “agree[d] with [Greenlaw] that the court of appeals erred in sU. S.onte remanding the case with directions to enhance petitioner’s sentence.” Brief in Opposition 12. We granted review and invited Jay T. Jorgensen to brief and argue this case, as amicus curiae, in support of the Court of Appeals’ judgment. 552 U. S. ___ (2008). Mr. Jorgensen accepted the appointment and has well fulfilled his assigned responsibility. II In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. To the extent courts have approved departures from the party presentation principle in criminal cases, the justification has usually been to protect a pro se litigant’s rights. See Castro v. United States, 540 U. S. 375, 381–383 (2003).[Footnote 2] But as a general rule, “[o]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” Id., at 386 (Scalia, J., concurring in part and concurring in judgment).[Footnote 3] As cogently explained: “[Courts] do not, or should not, sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide only questions presented by the parties. Counsel almost always know a great deal more about their cases than we do, and this must be particularly true of counsel for the United States, the richest, most powerful, and best represented litigant to appear before us.” United States v. Samuels, 808 F. 2d 1298, 1301 (CA8 1987) (R. Arnold, J., concurring in denial of reh’g en banc). The cross-appeal rule, pivotal in this case, is both informed by, and illustrative of, the party presentation principle. Under that unwritten but longstanding rule, an appellate court may not alter a judgment to benefit a nonappealing party. This Court, from its earliest years, has recognized that it takes a cross-appeal to justify a remedy in favor of an appellee. See McDonough v. Dannery, 3 Dall. 188, 198 (1796). We have called the rule “inveterate and certain.” Morley Constr. Co. v. Maryland Casualty Co., 300 U. S. 185, 191 (1937). Courts of Appeals have disagreed, however, on the proper characterization of the cross-appeal rule: Is it “jurisdictional,” and therefore exceptionless, or a “rule of practice,” and thus potentially subject to judicially created exceptions? Compare, e.g., Johnson v. Teamsters Local 559, 102 F. 3d 21, 28–29 (CA1 1996) (cross-appeal rule “is mandatory and jurisdictional”), with, e.g., American Roll-On Roll-Off Carrier, LLC v. P & O Ports Baltimore, Inc., 479 F. 3d 288, 295–296 (CA4 2007) (“cross-appeal requirement [is] one of practice, [not] a strict jurisdictional requirement”). Our own opinions contain statements supporting both characterizations. Compare, e.g., Morley Constr. Co., 300 U. S., at 187 (cross-appeal rule defines “[t]he power of an appellate court to modify a decree” (emphasis added)), with, e.g., Langnes v. Green, 282 U. S. 531, 538 (1931) (cross-appeal requirement is “a rule of practice which generally has been followed”). In El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 480 (1999), we declined to decide “the theoretical status” of the cross-appeal rule. It sufficed to point out that the rule was “firmly entrenched” and served to advance “institutional interests in fair notice and repose.” Ibid. “Indeed,” we noted, “in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule.” Ibid. Following the approach taken in Neztsosie, we again need not type the rule “jurisdictional” in order to decide this case. Congress has eased our decision by specifying the instances in which the Government may seek appellate review of a sentence, and then adding this clear instruction: Even when a United States Attorney files a notice of appeal with respect to a sentence qualifying for review, “[t]he Government may not further prosecute [the] appeal without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.” 18 U. S. C. §3742(b). Congress thus entrusted to named high-ranking officials within the Department of Justice responsibility for determining whether the Government, on behalf of the public, should seek a sentence higher than the one imposed. It would severely undermine Congress’ instruction were appellate judges to “sally forth” on their own motion, cf. supra, at 5, to take up errors adverse to the Government when the designated Department of Justice officials have not authorized an appeal from the sentence the trial court imposed.[Footnote 4] This Court has recognized that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U. S. 683, 693 (1974). We need not decide whether comparable authority and discretion are lodged in the Executive Branch with respect to the pursuit of issues on appeal. We need only recognize that Congress, in §3742(b), has accorded to the top representatives of the United States in litigation the prerogative to seek or forgo appellate correction of sentencing errors, however plain they may be. That measure should garner the Judiciary’s full respect. III A In ordering the District Court to add 15 years to Greenlaw’s sentence, despite the absence of a cross-appeal by the Government, the Court of Appeals identified Federal Rule of Criminal Procedure 52(b) as the source of its authority. See 481 F. 3d, at 608–609, and n. 5. Rule 52(b) reads: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Nothing in the text or history of Rule 52(b) suggests that the rulemakers, in codifying the plain-error doctrine, meant to override the cross-appeal requirement. See Advisory Committee’s Notes on Fed. Rule Crim. Proc. 52, 18 U. S. C. App., p. 1664 (describing Rule 52(b) as “a restatement of existing law”). Nor do our opinions support a plain-error exception to the cross-appeal rule. This Court has indeed noticed, and ordered correction of, plain errors not raised by defendants, but we have done so only to benefit a defendant who had himself petitioned the Court for review on other grounds. See, e.g., Silber v. United States, 370 U. S. 717 (1962) (per curiam). In no case have we applied plain-error doctrine to the detriment of a petitioning party. Rather, in every case in which correction of a plain error would result in modification of a judgment to the advantage of a party who did not seek this Court’s review, we have invoked the cross-appeal rule to bar the correction. In Chittenden v. Brewster, 2 Wall. 191 (1865), for example, the appellants asserted that an award entered in their favor was too small. A prior decision of this Court, however, made it plain that they were entitled to no award at all. See id., at 195–196 (citing Jones v. Green, 1 Wall. 330 (1864)). But because the appellee had not filed a cross-appeal, the Court left the award undisturbed. See 2 Wall., at 196. Strunk v. United States, 412 U. S. 434 (1973), decided over a century later, is similarly illustrative. There, the Court of Appeals had determined that the defendant was denied his right to a speedy trial, but held that the proper remedy was reduction of his sentence as compensation for the delay, not dismissal of the charges against him. As petitioner in this Court, the defendant sought review of the remedial order. See id., at 435. The Court suggested that there may have been no speedy trial violation, as “it seem[ed] clear that [the defendant] was responsible for a large part of the … delay.” Id., at 436. But because the Government had not raised the issue by cross-petition, we considered the case on the premise that the defendant had been deprived of his Sixth Amendment right, id., at 437, and ruled that dismissal of the indictment was the proper remedy, id., at 439–440. Even if there might be circumstances in which it would be proper for an appellate court to initiate plain-error review, sentencing errors that the Government refrained from pursuing would not fit the bill. Heightening the generally applicable party presentation principle, Congress has provided a dispositive direction regarding sentencing errors that aggrieve the Government. In §3742(b), as earlier explained, see supra, at 7, Congress designated leading Department of Justice officers as the decisionmakers responsible for determining when Government pursuit of a sentencing appeal is in order. Those high officers, Congress recognized, are best equipped to determine where the Government’s interest lies. Rule 52(b) does not invite appellate court interference with their assessment. B Amicus supporting the Eighth Circuit’s judgment links the argument based on Rule 52(b) to a similar argument based on 28 U. S. C. §2106. See Brief for Amicus Curiae by Invitation of the Court 40–43 (hereinafter Jorgensen Brief). Section 2106 states that federal appellate courts “may affirm, modify, vacate, set aside or reverse any judgment … lawfully brought before it for review.” For substantially the same reasons that Rule 52(b) does not override the cross-appeal requirement, §2106 does not do so either. Section 2106 is not limited to plain errors, much less to sentencing errors in criminal cases—it applies to all cases, civil and criminal, and to all errors. Were the construction amicus offers correct, §2106 would displace the cross-appeal rule cross-the-board. The authority described in §2106, we have observed, “must be exercised consistent with the requirements of the Federal Rules of Civil Procedure as interpreted by this Court.” Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U. S. 394, 402–403, n. 4 (2006). No different conclusion is warranted with respect to the “inveterate and certain” cross-appeal rule. Morley Constr. Co., 300 U. S., at 191. C In defending the Court of Appeals judgment, amicus places heavy weight on an argument pinned not to Rule 52(b) or 28 U. S. C. §2106, but to the text of 18 U. S. C. §3742, the Criminal Code provision governing appellate review of criminal sentences. As amicus reads §3742, once either party appeals a sentence, the Court of Appeals must remand “any illegal sentence regardless of whether the remand hurts or helps the appealing party.” Jorgensen Brief 9. Congress so directed, amicus argues, by instructing that, upon review of the record, a court of appeals “shall determine … whether the sentence was imposed in violation of law,” §3742(e) (emphasis added), and “shall remand” if it so determines, §3742(f)(1) (2000 ed., Supp. V) (emphasis added). See Jorgensen Brief 10–11, and n. 3. Amicus makes a further text-based observation. He notes that §3742(f)(2)—the provision covering sentences “outside the applicable [G]uideline range”—calls for a remand only where a departure from the Federal Sentencing Guidelines harms the appellant. In contrast, amicus emphasizes, §3742(f)(1)—the provision controlling sentences imposed “in violation of law” and Guideline application errors—contains no such appellant-linked limitation. The inference amicus draws from this distinction is that Congress intended to override the cross-appeal rule for sentences controlled by §3742(f)(1), i.e., those imposed “in violation of law” (or incorrectly applying the Guidelines), but not for Guideline departure errors, the category covered by §3742(f)(2). See id., at 14–15. This novel construction of §3742, presented for the first time in the brief amicus filed in this Court,[Footnote 5] is clever and complex, but ultimately unpersuasive. Congress enacted §3742 in 1984. See Sentencing Reform Act, §213(a), 98 Stat. 2011. At that time, the cross-appeal requirement was a solidly grounded rule of appellate practice. See supra, at 6. The inference properly drawn, we think, is that Congress was aware of the cross-appeal rule, and framed §3742 expecting that the new provision would operate in harmony with the “inveterate and certain” bar to enlarging judgments in favor of an appellee who filed no cross-appeal. Cf. Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991) (“Congress is understood to legislate against a background of common-law adjudicatory principles.”). Congress indicated awareness of the cross-appeal rule in an earlier measure, the Organized Crime Control Act of 1970 (OCCA), Pub. L. 91–452, 84 Stat. 922, which provided for review of sentences of “dangerous special offenders.” See §1001(a), id., at 948–951. For that Act, Congress crafted an explicit exception to the cross-appeal rule. It ordered that an appeal of a sentence taken by the Government “shall be deemed the taking of [an appeal] by the defendant.” Id., at 950. But the “deeming” ran in only one direction: “[A] sentence may be made more severe” OCCA provided, “only on review … taken by the United States.” Id., at 950–951.[Footnote 6] When Congress repealed this provision and, in §3742, broadly provided for appellate review of sentences, it did not similarly express in the new text any exception to the cross-appeal rule. In short, Congress formulated a precise exception to the cross-appeal rule when that was its intention. Notably, the exception Congress legislated did not expose a defendant to a higher sentence in response to his own appeal. Congress spoke plainly in the 1970 legislation, leaving nothing for a court to infer. We therefore see no reason to read the current statute in the inventive manner amicus proposes, inferring so much from so little. Amicus’ reading of §3742, moreover, would yield some strange results. We note two, in particular. Under his construction, §3742 would give with one hand what it takes away with the other: §3742(b) entrusts to certain Government officials the decision whether to appeal an illegally low sentence, see supra, at 7; but according to amicus, §§3742(e) and (f) would instruct appellate courts to correct an error of that order on their own initiative, thereby trumping the officials’ decision. We resist attributing to Congress an intention to render a statute so internally inconsistent. Cf. Western Air Lines, Inc. v. Board of Equalization of S. D., 480 U. S. 123, 133 (1987) (“The illogical results of applying [a proffered] interpretation … argue strongly against the conclusion that Congress intended th[o]se results[.]”). Further, the construction proposed by amicus would draw a puzzling distinction between incorrect applications of the Sentencing Guidelines, controlled by §3742(f)(1), and erroneous departures from the Guidelines, covered by §3742(f)(2). The latter would be subject to the cross-appeal rule, the former would not. We do not see why Congress would want to differentiate Guidelines decisions this way.[Footnote 7] D In increasing Greenlaw’s sentence by 15 years on its own initiative, the Eighth Circuit did not advert to the procedural rules setting deadlines for launching appeals and cross-appeals. Unyielding in character, these rules may be seen as auxiliary to the cross-appeal rule and the party presentation principle served by that rule. Federal Rule of Appellate Procedure 3(a)(1) provides that “[a]n appeal permitted by law … may be taken only by filing a notice of appeal … within the [prescribed] time.” (Emphasis added.) Complementing Rule 3(a)(1), Rule 4(b)(1)(B)(ii) instructs that, when the Government has the right to cross-appeal in a criminal case, its notice “must be filed … within 30 days after … the filing of a notice of appeal by any defendant.” (Emphasis added.) The filing time for a notice of appeal or cross-appeal, Rule 4(b)(4) states, may be extended “for a period not to exceed 30 days.” Rule 26(b) bars any extension beyond that time. The firm deadlines set by the Appellate Rules advance the interests of the parties and the legal system in fair notice and finality. Thus a defendant who appeals but faces no cross-appeal can proceed anticipating that the appellate court will not enlarge his sentence. And if the Government files a cross-appeal, the defendant will have fair warning, well in advance of briefing and argument, that pursuit of his appeal exposes him to the risk of a higher sentence. Given early warning, he can tailor his arguments to take account of that risk. Or he can seek the Government’s agreement to voluntary dismissal of the competing appeals, see Fed. Rule App. Proc. 42(b), before positions become hardened during the hours invested in preparing the case for appellate court consideration. The strict time limits on notices of appeal and cross-appeal would be undermined, in both civil and criminal cases, if an appeals court could modify a judgment in favor of a party who filed no notice of appeal. In a criminal prosecution, moreover, the defendant would appeal at his peril, with nothing to alert him that, on his own appeal, his sentence would be increased until the appeals court so decreed. In this very case, Greenlaw might have made different strategic decisions had he known soon after filing his notice of appeal that he risked a 15-year increase in an already lengthy sentence. E We note that nothing we have said in this opinion requires courts to modify their current practice in so-called “sentencing package cases.” Those cases typically involve multicount indictments and a successful attack by a defendant on some but not all of the counts of conviction. The appeals court, in such instances, may vacate the entire sentence on all counts so that, on remand, the trial court can reconfigure the sentencing plan to assure that it remains adequate to satisfy the sentencing factors in 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In remanded cases, the Government relates, trial courts have imposed a sentence on the remaining counts longer than the sentence originally imposed on those particular counts, but yielding an aggregate sentence no longer than the aggregate sentence initially imposed. See Brief for United States 23, n. 11 (citing, inter alia, United States v. Pimienta-Redondo, 874 F. 2d 9 (CA1 1989) (en banc)). Thus the defendant ultimately may gain nothing from his limited success on appeal, but he will also lose nothing, as he will serve no more time than the trial court originally ordered. The practice the Government describes is not at odds with the cross-appeal rule, which stops appellate judges from adding years to a defendant’s sentence on their own initiative. It simply ensures that the sentence “ ‘will suit not merely the offense but the individual defendant.’ ” Pimienta-Redondo, 874 F. 2d, at 14 (quoting Wasman v. United States, 468 U. S. 559, 564 (1984)). And the assessment will be made by the sentencing judge exercising discretion, not by an appellate panel ruling on an issue of law no party tendered to the court.[Footnote 8] This is not a “sentencing package” case. Greenlaw was unsuccessful on all his appellate issues. There was no occasion for the Court of Appeals to vacate his sentence and no warrant, in the absence of a cross-appeal, to order the addition of 15 years to his sentence.[Footnote 9] * * * For the reasons stated, the judgment of the United States Court of Appeals for the Eighth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The court added 10 years rather than 5 based on the jury’s finding that the firearm Greenlaw carried in connection with the second §924(c) offense had been discharged. See App. 44–45, 59–60. Footnote 2 Because this case does not present the issue, we take no position on whether correction of an error prejudicial to a nonappealing criminal defendant might be justified as a measure to obviate the need for a collateral attack. See post, at 6–7. Footnote 3 Cf. Kaplan, Civil Procedure—Reflections on the Comparison of Systems, 9 Buffalo L. Rev. 409, 431–432 (1960) (U. S. system “exploits the free-wheeling energies of counsel and places them in adversary confrontation before a detached judge”; “German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal”). Footnote 4 The dissent reads §3742(b) not as a restraint on sU. S.onte error correction by appellate courts, but simply as apportioning “authority within an executive department.” Post, at 11; see post, at 13 (“[P]erhaps Congress wanted to … giv[e] high-level officials the authority to nix meritless or marginal [sentencing appeals].”). A statute is hardly needed to establish the authority of the Attorney General and Solicitor General over local U. S. Attorneys on matters relating to the prosecution of criminal cases, including appeals of sentences. It seems unlikely, moreover, that Congress, having lodged discretion in top-ranking Department of Justice officers, meant that discretion to be shared with more than 200 appellate judges. Footnote 5 An appellee or respondent may defend the judgment below on a ground not earlier aired. See United States v. American Railway Express Co., 265 U. S. 425, 435 (1924) (“[T]he appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record[.]”). Footnote 6 The Controlled Substances Act of 1970, §409(h), 84 Stat. 1268–1269, contained matching instructions applicable to “dangerous special drug offender[s].” The prescriptions in both Acts were replaced by §3742. See Sentencing Reform Act of 1984, §§212(2), 213(a), 219, 98 Stat. 1987, 2011, 2027. Footnote 7 In rejecting the interpretation of §§3742(e) and (f) proffered by amicus, we take no position on the extent to which the remedial opinion in United States v. Booker, 543 U. S. 220 (2005), excised those provisions. Compare Rita v. United States, 551 U. S. ___, ___ (2007) (slip op., at 2) (Stevens, J., concurring) (Booker excised only the portions of §3742(e) that required de novo review by courts of appeals), with 551 U. S., at ___ (slip op., at 17) (Scalia, J., concurring in part and concurring in judgment) (Booker excised all of §§3742(e) and (f)). See also Kimbrough v. United States, 552 U. S. ___, ___ (2007) (slip op., at 3) (Thomas, J., dissenting) (the Booker remedial opinion, whatever it held, cannot be followed). Footnote 8 The dissent suggests that our reading of the cross-appeal rule is anomalous because it could bar a court of appeals from correcting an error that would increase a defendant’s sentence, but after a “successful” appeal the district court itself could rely on that same error to increase the sentence. See post, at 10–11, and n. 2. The cross-appeal rule, we of course agree, does not confine the trial court. But default and forfeiture doctrines do. It would therefore be hard to imagine a case in which a district court, after a court of appeals vacated a criminal sentence, could properly increase the sentence based on an error the appeals court left uncorrected because of the cross-appeal rule. What of cases remanded post-Booker on defendants’ appeals, the dissent asks? Post, at 10–11, n. 2. In those cases, defendants invited and received precisely the relief they sought, and the Sixth Amendment required. Neither the cross-appeal rule nor default and forfeiture had any role to play. Footnote 9 For all its spirited argument, the dissent recognizes the narrow gap between its core position and the Court’s. The cross-appeal rule, rooted in the principle of party presentation, the dissent concedes, should hold sway in the “vast majority of cases.” Post, at 4. Does this case qualify as the “rare” exception to the “strong rule of practice” the dissent advocates? See ibid. Greenlaw was sentenced to imprisonment for 442 months. The Government might have chosen to insist on 180 months more, but it elected not to do so. Was the error so “grossly prejudicial,” post, at 7, 9, so harmful to our system of justice, see post, at 7–8, as to warrant sua sponte correction? By what standard is the Court of Appeals to make such an assessment? Without venturing to answer these questions, see post, at 13, n. 3, the dissent would simply “entrust the decision to initiate error correction to the sound discretion of the courts of appeals,” post, at 1. The “strong rule” thus may be broken whenever the particular three judges composing the appellate panel see the sentence as a “wron[g] to right.” See supra, at 5 (internal quotation marks omitted). The better answer, consistent with our jurisprudence, as reinforced by Congress, entrusts “the decision [whether] to initiate error correction” in this matter to top counsel for the United States. See supra, at 7.
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553.US.474
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Petitioner, a 45-year-old postal worker, filed suit claiming that her employer had violated the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §633a(a)—which requires that “[a]ll personnel actions affecting employees … at least 40 years of age … be made free from any discrimination based on age”—by subjecting her to various forms of retaliation after she filed an administrative ADEA complaint. The District Court granted respondent summary judgment. The First Circuit affirmed on the ground that §633a(a)’s prohibition of “discrimination based on age” does not cover retaliation. Held: Section 633a(a) prohibits retaliation against a federal employee who complains of age discrimination. Pp. 3–16. (a) In so concluding, the Court follows the reasoning of two prior decisions ruling that retaliation is covered by similar language in other antidiscrimination statutes. First, in Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 237, the Court held that a retaliation claim could be brought under 42 U. S. C. §1982, which provides that “[a]ll citizens … shall have the same right … as is enjoyed by white citizens … to inherit, purchase, lease, sell, hold, and convey real and personal property.” While §1982 does not use the phrase “discrimination based on race,” that is its plain meaning. See, e.g., Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 177. Second, the Jackson Court, id., at 173–174, relied on Sullivan in holding that Title IX of the Education Amendments of 1972, 20 U. S. C. §1681(a), which prohibits “discrimination” “on the basis of sex” in educational programs receiving federal aid, reached retaliation against a public school teacher for complaining about sex discrimination in his school’s athletic program. 544 U. S., at 176–177. The ADEA language at issue (“discrimination based on age”) is not materially different from the language at issue in Jackson and is the functional equivalent of the language at issue in Sullivan, see Jackson, supra, at 177. And the context in which the statutory language appears is the same in all three cases: remedial provisions aimed at prohibiting discrimination. Respondent neither asks the Court to overrule Sullivan or Jackson nor questions those decisions’ reasoning, and the Government, both in Jackson and in CBOCS West, Inc. v. Humphries, ante, p. ___, has specifically urged the Court to follow Sullivan’s reasoning. Pp. 3–6. (b) The three grounds on which the First Circuit sought to distinguish Jackson in support of the Circuit’s perception that there is a clear difference between causes of action for discrimination and for retaliation are not persuasive. Pp. 6–9. (1) The Circuit places too much reliance on the fact that the ADEA expressly creates a private right of action, whereas the right of action under Title IX, the statute at issue in Jackson, is implied and not express, see Cannon v. University of Chicago, 441 U. S. 677. The assertion that this distinction allowed the Jackson Court greater leeway to adopt an expansive interpretation of Title IX improperly conflates the analytically distinct questions whether a statute confers a private right of action and whether the statute’s substantive prohibition reaches a particular form of conduct. Moreover, confusing these questions would lead to exceedingly strange results. For example, Title IX’s prohibition of “ discrimination” “on the basis of sex” either does or does not reach retaliation, and the presence or absence of another statutory provision expressly creating a private right of action cannot alter §1681(a)’s scope. Pp. 6–7. (2) Also unavailing is the Circuit’s attempt to distinguish Jackson on the ground that retaliation claims play a more important role under Title IX than under the ADEA. This argument ignores the basis for Jackson, which did not hold that Title IX prohibits retaliation because such claims are important as a policy matter, but, instead, relied on an interpretation of the “text of Title IX.” 544 U. S., at 173, 178. Jackson’s statement that “teachers … are often in the best position to vindicate [student] rights,” id., at 181, did not address the question whether the statutory term “discrimination” encompasses retaliation, but was made in response to the school board’s argument that only a “victim of the discrimination,” not third parties, should be allowed to assert a retaliation claim, id., at 179–182. P. 8. (3) Finally, the Circuit’s attempt to distinguish Jackson on the ground that Title IX was adopted in response to Sullivan, whereas there is no evidence in the ADEA’s legislative history that §633a was adopted in a similar context, is rejected. Jackson did not identify any legislative history evidence, but merely observed that because “Congress enacted Title IX just three years after Sullivan,” it was “ ‘realistic to presume that Congress was thoroughly familiar with [Sullivan] and … expected [Title IX] to be interpreted in conformity with [it].” 544 U. S., at 176. What Jackson said about the relationship between Sullivan and Title IX’s enactment can also be said about the relationship between Sullivan and §633a’s enactment, since the latter provision was enacted just five years after Sullivan was decided and two years after Title IX was enacted. Pp. 8–9. (c) Respondent’s other arguments supporting the contention that §633a(a) does not encompass retaliation claims are rejected. Pp. 10–16. (1) Respondent places too much reliance on the presence of an ADEA provision specifically prohibiting retaliation against individuals complaining about private-sector age discrimination, §623(d), and the absence of a similar provision in §633a. Because §§623 and 633a were enacted seven years apart rather than simultaneously, see Lindh v. Murphy, 521 U. S. 320, 330, and because they are couched in very different terms—with §§623(a)(1)–(3) listing specific forbidden employer practices in contrast to §633a(a)’s broad prohibition of “discrimination”—the absence of a federal-sector provision similar to §623(d) does not provide a sufficient reason to depart from Sullivan and Jackson. Pp. 10–12. (2) There is even less merit in respondent’s reliance on §633a(f), which provides that personnel actions by a federal entity covered by §633a “shall not be subject to, or affected by, any provision of this chapter” other than §633a and §631(b), which restricts ADEA coverage to persons at least 40 years old. Respondent’s contention that recognizing federal-sector retaliation claims would make §623(d) applicable to federal-sector employers in contravention of §633a(f) is unsound because the Court’s holding today is not based on §623(d) but on §633a(a) itself, “unaffected by other [ADEA] sections,” Lehman v. Nakshian, 453 U. S. 156, 168. P. 13. (3) Also unavailing is respondent’s argument that the history of congressional and Executive Branch responses to discrimination in federal employment demonstrates that when Congress enacted §633a, it anticipated that the pre-existing reprisal regulations of the Civil Service Commission (CSC) would be extended to cover federal-sector age discrimination and be the exclusive avenue for asserting retaliation claims. This argument is not supported by direct evidence, but rests on unsupported speculation, and, in any event, is self-contradictory in that, if §633a(a) does not confer an antiretaliation right, there is no reason to assume that Congress expected the CSC to issue new regulations prohibiting retaliation. Pp. 13–14. (4) Respondent’s final argument—that sovereign immunity principles require that §633a(a) be read narrowly as prohibiting substantive age discrimination but not retaliation—is unpersuasive. The rule of construction requiring that “[a] waiver of the Federal Government’s sovereign immunity … be unequivocally expressed in statutory text” and “strictly construed … in favor of the sovereign,” Lane v. Peńa, 518 U. S. 187, 192, is satisfied here by §633a(c), which unequivocally waives sovereign immunity for a claim brought by “[a]ny person aggrieved” by a §633a violation. Unlike §663a(c), §633a(a) is not a waiver of sovereign immunity; it is a substantive provision outlawing “discrimination.” That the §633a(c) waiver applies to §633a(a) claims does not mean that §633a(a) must surmount the same high hurdle as §633a(c). Pp. 15–16. 476 F. 3d 54, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to all but Part I. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined.
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The question before us is whether a federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), as added, 88 Stat. 74, and amended, 29 U. S. C. §633a(a) (2000 ed., Supp. V). We hold that such a claim is authorized. I Petitioner Myrna Gómez-Pérez was a window distribution clerk for the United States Postal Service. In October 2002, petitioner, then 45 years of age, was working full time at the Post Office in Dorado, Puerto Rico. She requested a transfer to the Post Office in Moca, Puerto Rico, in order to be closer to her mother, who was ill. The transfer was approved, and in November 2002, petitioner began working at the Moca Post Office in a part-time position. Later that month, petitioner requested a transfer back to her old job at the Dorado Post Office, but her supervisor converted the Dorado position to part-time, filled it with another employee, and denied petitioner’s application. After first filing an unsuccessful union grievance seeking a transfer back to her old job, petitioner filed a Postal Service equal employment opportunity age discrimination complaint. According to petitioner, she was then subjected to various forms of retaliation. Specifically, petitioner alleges that her supervisor called her into meetings during which groundless complaints were leveled at her, that her name was written on antisexual harassment posters, that she was falsely accused of sexual harassment, that her co-workers told her to “ ‘go back’ ” to where she “ ‘belong[ed],’ ” and that her work hours were drastically reduced. 476 F. 3d 54, 56 (CA1 2007). Petitioner responded by filing this action in the United States District Court for the District of Puerto Rico, claiming, among other things, that respondent had violated the federal-sector provision of the ADEA, 29 U. S. C. §633a(a) (2000 ed., Supp. V), by retaliating against her for filing her equal employment opportunity age discrimination complaint. Respondent moved for summary judgment, arguing that the United States has not waived sovereign immunity for ADEA retaliation claims and that the ADEA federal-sector provision does not reach retaliation. The District Court granted summary judgment in favor of respondent on the basis of sovereign immunity. On appeal, the United States Court of Appeals for the First Circuit held that the Postal Reorganization Act, 39 U. S. C. §401(1), unequivocally waived the Postal Service’s sovereign immunity, see 476 F. 3d, at 54, 57, but the Court affirmed the decision of the District Court on the alternative ground that the federal-sector provision’s prohibition of “discrimination based on age,” §633a(a) (2000 ed., Supp. V), does not cover retaliation, id., at 60, creating a split among the Courts of Appeals. Compare Forman v. Small, 271 F. 3d 285, 296 (CADC 2001) (ADEA federal-sector provision covers retaliation). We granted certiorari. 552 U. S. ___ (2007). II The federal-sector provision of the ADEA provides that “[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” §633a(a) (2000 ed., Supp. V). The key question in this case is whether the statutory phrase “discrimination based on age” includes retaliation based on the filing of an age discrimination complaint. We hold that it does. In reaching this conclusion, we are guided by our prior decisions interpreting similar language in other antidiscrimination statutes. In Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 (1969), we considered whether a claim of retaliation could be brought under Rev. Stat. §1978, 42 U. S. C. §1982, which provides that “[a]ll citizens of the United States shall have the same right … as is enjoyed by white citizens … to inherit, purchase, lease, sell, hold, and convey real and personal property.” While §1982 does not use the phrase “discrimination based on race,” that is its plain meaning. See Tennessee v. Lane, 541 U. S. 509, 561 (2004) (Scalia, J., dissenting) (describing §1982 as “banning public or private racial discrimination in the sale and rental of property”); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). In Sullivan, a white man (Sullivan) held membership shares in a nonstock corporation that operated a park and playground for residents of the area in which he owned a home. Under the bylaws of the corporation, a member who leased a home in the area could assign a membership share in the corporation. But when Sullivan rented his house and attempted to assign a membership share to an African-American (Freeman), the corporation disallowed the assignment because of Freeman’s race and subsequently expelled Sullivan from the corporation for protesting that decision. Sullivan sued the corporation, and we held that his claim that he had been expelled “for the advocacy of Freeman’s cause” was cognizable under §1982. 396 U. S., at 237. A contrary holding, we reasoned, would have allowed Sullivan to be “punished for trying to vindicate the rights of minorities” and would have given “impetus to the perpetuation of racial restrictions on property.” Ibid. More recently, in Jackson v. Birmingham Bd. of Ed., 544 U. S. 167 (2005), we relied on Sullivan in interpreting Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U. S. C. §1681 et seq. (2000 ed. and Supp. V). Jackson, a public school teacher, sued his school board under Title IX, “alleging that the Board retaliated against him because he had complained about sex discrimination in the high school’s athletic program.” 544 U. S., at 171. Title IX provides in relevant part that “[n]o person in the United States shall, on the basis of sex, … be subjected to discrimination under any education program or activity receiving Federal financial assistance.” §1681(a) (2000 ed.) (emphasis added). Holding that this provision prohibits retaliation, we wrote: “Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination … . Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subjected to differential treatment. Moreover, retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.” Id., at 173–174 (citations omitted). This interpretation, we found, flowed naturally from Sullivan: “Retaliation for Jackson’s advocacy of the rights of the girls’ basketball team in this case is ‘discrimination’ ‘on the basis of sex,’ just as retaliation for advocacy on behalf of a black lessee in Sullivan was discrimination on the basis of race.” 544 U. S., at 176–177. Following the reasoning of Sullivan and Jackson, we interpret the ADEA federal-sector provision’s prohibition of “discrimination based on age” as likewise proscribing retaliation. The statutory language at issue here (“discrimination based on age”) is not materially different from the language at issue in Jackson (“ ‘discrimination’ ” “ ‘on the basis of sex’ ”) and is the functional equivalent of the language at issue in Sullivan, see Jackson, supra, at 177 (describing Sullivan as involving “discrimination on the basis of race”). And the context in which the statutory language appears is the same in all three cases; that is, all three cases involve remedial provisions aimed at prohibiting discrimination. The Jackson dissent strenuously argued that a claim of retaliation is conceptually different from a claim of discrimination, see 544 U. S., at 184–185 (opinion of Thomas, J.), but that view did not prevail.[Footnote 1] And respondent in this case does not ask us to overrule Sullivan or Jackson. Nor does respondent question the reasoning of those decisions. Indeed, in Jackson, the Government contended that “[t]he text . . . of Title IX demonstrate[s] that it encompasses protection against retaliation” since “retaliation against a person because that person has filed a sex discrimination complaint is a form of intentional sex discrimination.” Brief for United States as Amicus Curiae 8, in Jackson v. Birmingham Bd. of Ed., O. T. 2004, No. 02–1672. Similarly, in another case this Term, the Government has urged us to follow the reasoning of Sullivan and to hold that a claim of retaliation may be brought under Rev. Stat. §1977, 42 U. S. C. §1981. In that case, the Government argues that §1981’s prohibition of “ ‘discrimination’ . . . quite naturally includes discrimination on account of having complained about discrimination.” Brief for United States as Amicus Curiae 10, in CBOCS West, Inc. v. Humphries, O. T. 2007, No. 06–1431. III The decision of the Court of Appeals, which respondent defends, perceived a “clear difference between a cause of action for discrimination and a cause of action for retaliation” and sought to distinguish Jackson on three grounds. 476 F. 3d, at 58–59. We are not persuaded, however, by any of these attempted distinctions. A The Court of Appeals first relied on the fact that the ADEA expressly creates a private right of action whereas Title IX, the statute at issue in Jackson, does not. See 476 F. 3d, at 58. The Court of Appeals appears to have reasoned that, because the private right of action under Title IX is implied and not express, see Cannon v. University of Chicago, 441 U. S. 677 (1979), the Jackson Court had greater leeway to adopt an expansive interpretation of Title IX’s prohibition of discrimination on the basis of sex. This reasoning improperly conflates the question whether a statute confers a private right of action with the question whether the statute’s substantive prohibition reaches a particular form of conduct. These questions are analytically distinct, and confusing them would lead to exceedingly strange results. For example, under the Court of Appeals’ reasoning, Title IX’s prohibition of “discrimination” “on the basis of sex,” in 20 U. S. C. §1681(a), might have a narrower scope and might not reach retaliation if Title IX contained a provision expressly authorizing an aggrieved private party to bring suit to remedy a violation of §1681(a). We do not see how such a conclusion could be defended. Section 1681(a)’s prohibition of “discrimination” either does or does not reach retaliation, and the presence or absence of another statutory provision expressly creating a private right of action cannot alter §1681(a)’s scope. In addition, it would be perverse if the enactment of a provision explicitly creating a private right of action—a provision that, if anything, would tend to suggest that Congress perceived a need for a strong remedy—were taken as a justification for narrowing the scope of the underlying prohibition. The Court of Appeals’ reasoning also seems to lead to the strange conclusion that, despite Jackson’s holding that a private party may assert a retaliation claim under Title IX, the Federal Government might not be authorized to impose upon an entity that engages in retaliation the administrative remedies, including the termination of funding, that are expressly sanctioned under §1682. It would be extremely odd, however, if §1681(a) had a broader scope when enforced by a means not expressly sanctioned by statute than it does when enforced by the means that the statute explicitly provides. For these reasons, we reject the proposition that Jackson may be distinguished from the present case on the ground that Title IX’s private right of action is implied. B The Court of Appeals next attempted to distinguish Jackson on the ground that retaliation claims play a more important role under Title IX than they do under the ADEA. The Court of Appeals pointed to our statement in Jackson that “ ‘teachers and coaches . . . are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators.’ ” 476 F. 3d, at 58 (quoting Jackson, 544 U. S., at 181). The Court of Appeals suggested that third parties are not needed to “identify instances of age discrimination and bring it to the attention of supervisors” and that, consequently, there is no need to extend §633a(a) (2000 ed., Supp. V) to reach retaliation. 476 F. 3d, at 58. This argument ignores the basis for the decision in Jackson. Jackson did not hold that Title IX prohibits retaliation because the Court concluded as a policy matter that such claims are important. Instead, the holding in Jackson was based on an interpretation of the “text of Title IX.” 544 U. S., at 173, 178. Moreover, the statements in Jackson on which the Court of Appeals relied did not address the question whether the statutory term “discrimination” encompasses retaliation. Instead, those statements addressed the school board’s argument that, even if Title IX was held to permit some retaliation claims, only a “victim of the discrimination”—and not third parties—should be allowed to assert such a claim. Id., at 179–182. It was in response to this argument that the Court noted the particular importance of reports of Title IX violations by third parties such as teachers and coaches. Id., at 181. C Finally, the Court of Appeals attempted to distinguish Jackson on the ground that “Title IX was adopted in response to the Court’s holding in Sullivan,” whereas “there is no evidence in the legislative history that the ADEA’s federal sector provisions were adopted in a similar context.” 476 F. 3d, at 58–59. Jackson’s reliance on Sullivan, however, did not stem from “evidence in the legislative history” of Title IX. Jackson did not identify any such evidence but merely observed that “Congress enacted Title IX just three years after Sullivan was decided.” 544 U. S., at 176. Due to this chronology, the Court concluded, it was “ ‘not only appropriate but also realistic to presume that Congress was thoroughly familiar with [Sullivan] and that it expected its enactment [of Title IX] to be interpreted in conformity with [it].” Ibid. (quoting Cannon, 441 U. S., at 699). See also 544 U. S., at 176 (“Title IX was enacted in 1972, three years after [Sullivan]”); id., at 179–180 (“Sullivan . . . formed an important part of the backdrop against which Congress enacted Title IX”). What Jackson said about the relationship between Sullivan and the enactment of Title IX can be said as well about the relationship between Sullivan and the enactment of the ADEA’s federal-sector provision, 29 U. S. C. §633a (2000 ed. and Supp. V). Sullivan was decided in 1969 and §633a was enacted in 1974—five years after the decision in Sullivan and two years after the enactment of Title IX. We see no reason to think that Congress forgot about Sullivan during the two years that passed between the enactment of Title IX in 1972 and the enactment of §633a in 1974. And if, as Jackson presumed, Congress had Sullivan in mind when it enacted Title IX in 1972, it is “appropriate” and “realistic” to presume that Congress expected its prohibition of “discrimination based on age” in §633a(a) “ ‘to be interpreted in conformity with’ ” its similarly worded prohibition of “discrimination” “on the basis of sex” in 20 U. S. C. §1681(a), which it had enacted just two years earlier. 544 U. S., at 176 (quoting Cannon, supra, at 699). IV A In arguing that §633a(a) (2000 ed., Supp. V) does not encompass retaliation claims, respondent relies principally on the presence of a provision in the ADEA specifically prohibiting retaliation against individuals who complain about age discrimination in the private sector, §623(d), and the absence of a similar provision specifically prohibiting retaliation against individuals who complain about age discrimination in federal employment. According to respondent, “the strong presumption is that [the] omission reflects that Congress acted intentionally and purposely in including such language in Section 623 of the Act and excluding it from Section 633a.” Brief for Respondent 17 (internal quotation marks omitted). “[N]egative implications raised by disparate provisions are strongest” in those instances in which the relevant statutory provisions were “considered simultaneously when the language raising the implication was inserted.” Lindh v. Murphy, 521 U. S. 320, 330 (1997). Here, the two relevant provisions were not considered or enacted together. Section 623(d), which specifically prohibits private sector retaliation, was enacted in 1967, see §4(d), 81 Stat. 603, but the federal-sector provision, §633a, was not added until 1974, see §28(b)(2), 88 Stat. 74.[Footnote 2] Respondent’s argument is also undermined by the fact that the prohibitory language in the ADEA’s federal-sector provision differs sharply from that in the corresponding ADEA provision relating to private-sector employment. In the private-sector provision, Congress set out a specific list of forbidden employer practices. See 29 U. S. C. §623(a).[Footnote 3] The omission from such a list of a specific prohibition of retaliation might have been interpreted as suggesting that Congress did not want to reach retaliation, and therefore Congress had reason to include a specific prohibition of retaliation, §623(d), in order to dispel any such inference. The ADEA federal-sector provision, however, was not modeled after §623(d) and is couched in very different terms. The ADEA federal-sector provision was patterned “directly after” Title VII’s federal-sector discrimination ban. Lehman v. Nakshian, 453 U. S. 156, 167, n. 15 (1981). Like the ADEA’s federal-sector provision, Title VII’s federal-sector provision, contains a broad prohibition of “discrimination,” rather than a list of specific prohibited practices. Compare 118 Stat. 814, as amended, 42 U. S. C. §2000(e)–16(a) (2000 ed., Supp. V) (personnel actions affecting federal employees “shall be made free from any discrimination based on race, color, religion, sex, or national origin”) with 29 U. S. C. §633a(a) (2000 ed., Supp. V) (personnel actions affecting federal employees who are at least 40 years of age “shall be made free from any discrimination based on age”). And like the ADEA’s federal-sector provision, Title VII’s federal-sector provision incorporates certain private-sector provisions but does not incorporate the provision prohibiting retaliation in the private sector. See 42 U. S. C. §2000e–16(d) (incorporating §§2000e–5(f) to (k) but not §2000e–3(a), which forbids private-sector retaliation).[Footnote 4] When Congress decided not to pattern 29 U. S. C. §633a(a) after §623(a) but instead to enact a broad, general ban on “discrimination based on age,” Congress was presumably familiar with Sullivan and had reason to expect that this ban would be interpreted “in conformity” with that precedent. Jackson, 544 U. S., at 176. Under the reasoning of Sullivan, retaliation for complaining about age discrimination, is “discrimination based on age,” “just as retaliation for advocacy on behalf of [the] black lessee in Sullivan was discrimination on the basis of race.” Id., at 176–177. Thus, because §§623(d) and 633a were enacted separately and are couched in very different terms, the absence of a federal-sector provision similar to §623(d) does not provide a sufficient reason to depart from the reasoning of Sullivan and Jackson.[Footnote 5] B We see even less merit in respondent’s reliance on 29 U. S. C. §633a(f), which provides that personnel actions by a federal department, agency, or other entity covered by §633a “shall not be subject to, or affected by, any provision of this chapter” other than §§633a and 631(b), the provision that restricts the coverage of the ADEA to persons who are at least 40 years of age. Respondent contends that recognizing federal-sector retaliation claims would be tantamount to making §623(d) applicable to federal-sector employers and would thus contravene §633a(f). This argument is unsound because our holding that the ADEA prohibits retaliation against federal-sector employees is not in any way based on §623(d). Our conclusion, instead, is based squarely on §633a(a) (2000 ed., Supp. V) itself, “unaffected by other sections” of the Act. Lehman, supra, at 168. C Respondent next advances a complicated argument concerning “[t]he history of congressional and executive branch responses to the problem of discrimination in federal employment.” Brief for Respondent 27. After Title VII was made applicable to federal employment in 1972, see Equal Employment Act, §11, 86 Stat. 111, the Civil Service Commission issued new regulations that prohibited discrimination in federal employment based on race, color, religion, sex, and national origin (but not age), see 5 CFR §713.211 (1973), as well as “reprisal[s]” prompted by complaints about such discrimination, §713.262(a). When Congress enacted the ADEA’s federal-sector provisions in 1974, respondent argues, Congress anticipated that the enactment of §633a would prompt the Civil Service Commission to “extend its existing reprisal regulations” to cover age discrimination complaints and that Congress intended for the civil service process to provide the exclusive avenue for asserting retaliation claims. Brief for Respondent 27, 33, and n. 7. Respondent suggests that Congress took this approach because it believed that the Civil Service regulations “reflect[ed] a distinct set of public policy concerns in the civil service sector.” Id., at 27. Respondent cites no direct evidence that Congress actually took this approach;[Footnote 6] respondent’s argument rests on nothing more than unsupported speculation. And, in any event, respondent’s argument contradicts itself. If, as respondent maintains, “[s]ection 633a(a) does not confer an anti-retaliation right,” id., at 9, then there is no reason to assume that Congress expected the Civil Service Commission to respond to the enactment of §633a(a) by issuing new regulations prohibiting retaliation. On the contrary, if, as respondent maintains, Congress had declined to provide an antiretaliation right, then Congress presumably would have expected the Civil Service Commission to abide by that policy choice. D Respondent’s final argument is that principles of sovereign immunity “require that Section 633a(a) be read narrowly as prohibiting substantive age discrimination, but not retaliation.” Id., at 44. Respondent contends that the broad waiver of sovereign immunity in the Postal Reorganization Act, 39 U. S. C. §401(1), is beside the point for present purposes because, for many federal agencies, the only provision that waives sovereign immunity for ADEA claims is contained in §633a, and therefore this waiver provision “must be construed strictly in favor of the sovereign.” Brief for Respondent 44 (quoting United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992); internal quotation marks omitted). Respondent is of course correct that “[a] waiver of the Federal Government’s sovereign immunity must be unequivocally expressed in statutory text” and “will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Peńa, 518 U. S. 187, 192 (1996). But this rule of construction is satisfied here. Subsection (c) of §633a unequivocally waives sovereign immunity for a claim brought by “[a]ny person aggrieved” to remedy a violation of §633a. Unlike §663a(c), §633a(a) (2000 ed., Supp. V) is not a waiver of sovereign immunity; it is a substantive provision outlawing “discrimination.” That the waiver in §633a(c) applies to §633a(a) claims does not mean that §633a(a) must surmount the same high hurdle as §633a(c). See United States v. White Mountain Apache Tribe, 537 U. S. 465, 472–473 (2003) (where one statutory provision unequivocally provides for a waiver of sovereign immunity to enforce a separate statutory provision, that latter provision “ ‘need not … be construed in the manner appropriate to waivers of sovereign immunity’ ” (quoting United States v. Mitchell, 463 U. S. 206, 218–219 (1983))). But in any event, even if §633a(a) must be construed in the same manner as §633a(c), we hold, for the reasons previously explained, that §633a(a) prohibits retaliation with the requisite clarity. * * * For these reasons, we hold that §633a(a) prohibits retaliation against a federal employee who complains of age discrimination. The judgment of the Court of Appeals is reversed, and this case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Suggesting that we have retreated from the reasoning of Sullivan and Jackson, The Chief Justice, citing Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 63–65 (2006), states that “we have since explained that antidiscrimination and antiretaliation provisions are indeed conceptually distinct, and serve distinct purposes.” Post, at 4 (dissenting opinion). But as the Court explains today in CBOCS West, Inc. v. Humphries, ante, at 13, “[i]n Burlington … we used the status/conduct distinction to help explain why Congress might have wanted its explicit Title VII antiretaliation provision to sweep more broadly (i.e., to include conduct outside the workplace) than its substantive Title VII (status-based ) antidiscrimination provision. Burlington did not suggest that Congress must separate the two in all events.” Footnote 2 The situation here is quite different from that which we faced in Lehman v. Nakshian, 453 U. S. 156 (1981), where both the private and federal-sector provisions of the ADEA already existed and a single piece of legislation—the 1978 amendments to the ADEA—added a provision conferring a jury-trial right for private-sector ADEA suits but failed to include any similar provision for federal-sector suits. See Age Discrimination in Employment Act Amendments of 1978, §4(a)(2), 92 Stat. 189. Footnote 3 Section 623(a) provides: “(a) Employer practices “It shall be unlawful for an employer— “(1) 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; “(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or “(3) to reduce the wage rate of any employee in order to comply with this chapter.” Footnote 4 While the federal-sector provision of Title VII does not incorporate §2000e–3(a), the federal-sector provision of Title VII does incorporate a remedial provision, §2000e–5(g)(2)(A), that authorizes relief for a violation of §2000–3(a). Petitioner argues that this remedial provision shows that Congress meant for the Title VII federal-sector provision’s broad prohibition of “discrimination based on race, color, religion, sex, or national origin” to reach retaliation because otherwise there would be no provision banning retaliation in the federal sector and thus no way in which relief for retaliation could be awarded. Brief for Petitioner 20. The Federal Government, however, has declined to take a position on the question whether Title VII bans retaliation in federal employment, see Tr. of Oral Arg. 31, and that issue is not before us in this case. Footnote 5 The Government’s theory that the absence of a provision specifically banning federal-sector retaliation gives rise to the inference that §633a(a) (2000 ed., Supp. V) does not ban retaliation would lead logically to the strange conclusion that §633a(a) also does not forbid age-discriminatory job notices and advertisements because §633a(a), unlike §623(e) (2000 ed.), fails to mention such practices expressly. Footnote 6 Respondent asks us to infer that §633a(a) (2000 ed., Sup. V) does not proscribe retaliation because, when Congress made the ADEA applicable to the Federal Government, Congress did not simply subject the Federal Government to the ADEA’s private-employment provisions by amending the definition of “employer” to include the United States. Respondent contends that a similar inference may be drawn from the fact that in 1974 Congress added to the Fair Labor Standards Act of 1938 (FLSA) a provision specifically making it unlawful to retaliate against an employee for attempting to vindicate FLSA rights. See §215(a)(3). These arguments fail to appreciate the significance of §633a(a)’s broad prohibition of “discrimination based on age.” Because Congress had good reason to expect that this broad ban would be interpreted in the same way that Sullivan v. Little Hunting Park, Inc., 392 U. S. 657 (1968), had interpreted the broad ban on racial discrimination in 42 U. S. C. §1982, the inference that respondent asks us to draw is unfounded.
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552.US.576
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The Federal Arbitration Act (FAA), 9 U. S. C. §§9–11, provides expedited judicial review to confirm, vacate, or modify arbitration awards. Under §9, a court “must” confirm an award “unless” it is vacated, modified, or corrected “as prescribed” in §§10 and 11. Section 10 lists grounds for vacating an award, including where the award was procured by “corruption,” “fraud,” or “undue means,” and where the arbitrators were “guilty of misconduct,” or “exceeded their powers.” Under §11, the grounds for modifying or correcting an award include “evident material miscalculation,” “evident material mistake,” and “imperfect[ions] in [a] matter of form not affecting the merits.” After a bench trial sustained respondent tenant’s (Mattel) right to terminate its lease with petitioner landlord (Hall Street), the parties proposed to arbitrate Hall Street’s claim for indemnification of the costs of cleaning up the lease site. The District Court approved, and entered as an order, the parties’ arbitration agreement, which, inter alia, required the court to vacate, modify, or correct any award if the arbitrator’s conclusions of law were erroneous. The arbitrator decided for Mattel, but the District Court vacated the award for legal error, expressly invoking the agreement’s legal-error review standard and citing the Ninth Circuit’s LaPine decision for the proposition that the FAA allows parties to draft a contract dictating an alternative review standard. On remand, the arbitrator ruled for Hall Street, and the District Court largely upheld the award, again applying the parties’ stipulated review standard. The Ninth Circuit reversed, holding the case controlled by its Kyocera decision, which had overruled LaPine on the ground that arbitration-agreement terms fixing the mode of judicial review are unenforceable, given the exclusive grounds for vacatur and modification provided by FAA §§10 and 11. Held: 1. The FAA’s grounds for prompt vacatur and modification of awards are exclusive for parties seeking expedited review under the FAA. The Court rejects Hall Street’s two arguments to the contrary. First, Hall Street submits that expandable judicial review has been accepted as the law since Wilko v. Swan, 346 U. S. 427. Although a Wilko statement—“the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation,” id., at 436–437 (emphasis added)—arguably favors Hall Street’s position, arguable is as far as it goes. Quite apart from the leap from a supposed judicial expansion by interpretation to a private expansion by contract, Hall Street overlooks the fact that the Wilko statement expressly rejects just what Hall Street asks for here, general review for an arbitrator’s legal errors. Moreover, Wilko’s phrasing is too vague to support Hall Street’s interpretation, since “manifest disregard” can be read as merely referring to the §10 grounds collectively, rather than adding to them, see, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 656, or as shorthand for the §10 subsections authorizing vacatur when arbitrators were “guilty of misconduct” or “exceeded their powers.” Second, Hall Street says that the agreement to review for legal error ought to prevail simply because arbitration is a creature of contract, and the FAA is motivated by a congressional desire to enforce such agreements. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 220. This argument comes up short because, although there may be a general policy favoring arbitration, the FAA has textual features at odds with enforcing a contract to expand judicial review once the arbitration is over. Even assuming §§10 and 11 could be supplemented to some extent, it would stretch basic interpretive principles to expand their uniformly narrow stated grounds to the point of legal review generally. But §9 makes evident that expanding §10’s and §11’s detailed categories at all would rub too much against the grain: §9 carries no hint of flexibility in unequivocally telling courts that they “must” confirm an arbitral award, “unless” it is vacated or modified “as prescribed” by §§10 and 11. Instead of fighting the text, it makes more sense to see §§9–11 as the substance of a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway. Dean Witter, supra, at 217, 219, distinguished. Pp. 7–12. 2. In holding the §10 and §11 grounds exclusive with regard to enforcement under the FAA’s expedited judicial review mechanisms, this Court decides nothing about other possible avenues for judicial enforcement of awards. Accordingly, this case must be remanded for consideration of independent issues. Because the arbitration agreement was entered into during litigation, was submitted to the District Court as a request to deviate from the standard sequence of litigation procedure, and was adopted by the court as an order, there is some question whether it should be treated as an exercise of the District Court’s authority to manage its cases under Federal Rule of Civil Procedure 16. This Court ordered supplemental briefing on the issue, but the parties’ supplemental arguments implicate issues that have not been considered previously in this litigation and could not be well addressed for the first time here. Thus, the Court expresses no opinion on these matters beyond leaving them open for Hall Street to press on remand. Pp. 13–15. 196 Fed. Appx. 476, vacated and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, and Alito, JJ., joined, and in which Scalia, J., joined as to all but footnote 7. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined. Breyer, J., filed a dissenting opinion.
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* The Federal Arbitration Act (FAA or Act), 9 U. S. C. §1 et seq., provides for expedited judicial review to confirm, vacate, or modify arbitration awards. §§9–11 (2000 ed. and Supp. V). The question here is whether statutory grounds for prompt vacatur and modification may be supplemented by contract. We hold that the statutory grounds are exclusive. I This case began as a lease dispute between landlord, petitioner Hall Street Associates, L. L. C., and tenant, respondent Mattel, Inc. The property was used for many years as a manufacturing site, and the leases provided that the tenant would indemnify the landlord for any costs resulting from the failure of the tenant or its predecessor lessees to follow environmental laws while using the premises. App. 88–89. Tests of the property’s well water in 1998 showed high levels of trichloroethylene (TCE), the apparent residue of manufacturing discharges by Mattel’s predecessors between 1951 and 1980. After the Oregon Department of Environmental Quality (DEQ) discovered even more pollutants, Mattel stopped drawing from the well and, along with one of its predecessors, signed a consent order with the DEQ providing for cleanup of the site. After Mattel gave notice of intent to terminate the lease in 2001, Hall Street filed this suit, contesting Mattel’s right to vacate on the date it gave, and claiming that the lease obliged Mattel to indemnify Hall Street for costs of cleaning up the TCE, among other things. Following a bench trial before the United States District Court for the District of Oregon, Mattel won on the termination issue, and after an unsuccessful try at mediating the indemnification claim, the parties proposed to submit to arbitration. The District Court was amenable, and the parties drew up an arbitration agreement, which the court approved and entered as an order. One paragraph of the agreement provided that “[t]he United States District Court for the District of Oregon may enter judgment upon any award, either by confirming the award or by vacating, modifying or correcting the award. The Court shall vacate, modify or correct any award: (i) where the arbitrator’s findings of facts are not supported by substantial evidence, or (ii) where the arbitrator’s conclusions of law are erroneous.” App. to Pet. for Cert. 16a. Arbitration took place, and the arbitrator decided for Mattel. In particular, he held that no indemnification was due, because the lease obligation to follow all applicable federal, state, and local environmental laws did not require compliance with the testing requirements of the Oregon Drinking Water Quality Act (Oregon Act); that Act the arbitrator characterized as dealing with human health as distinct from environmental contamination. Hall Street then filed a District Court Motion for Order Vacating, Modifying And/Or Correcting the arbitration decision, App. 4, on the ground that failing to treat the Oregon Act as an applicable environmental law under the terms of the lease was legal error. The District Court agreed, vacated the award, and remanded for further consideration by the arbitrator. The court expressly invoked the standard of review chosen by the parties in the arbitration agreement, which included review for legal error, and cited LaPine Technology Corp. v. Kyocera Corp., 130 F. 3d 884, 889 (CA9 1997), for the proposition that the FAA leaves the parties “free . . . to draft a contract that sets rules for arbitration and dictates an alternative standard of review.” App. to Pet. for Cert. 46a. On remand, the arbitrator followed the District Court’s ruling that the Oregon Act was an applicable environmental law and amended the decision to favor Hall Street. This time, each party sought modification, and again the District Court applied the parties’ stipulated standard of review for legal error, correcting the arbitrator’s calculation of interest but otherwise upholding the award. Each party then appealed to the Court of Appeals for the Ninth Circuit, where Mattel switched horses and contended that the Ninth Circuit’s recent en banc action overruling LaPine in Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F. 3d 987, 1000 (2003), left the arbitration agreement’s provision for judicial review of legal error unenforceable. Hall Street countered that Kyocera (the later one) was distinguishable, and that the agreement’s judicial review provision was not severable from the submission to arbitration. The Ninth Circuit reversed in favor of Mattel in holding that, “[u]nder Kyocera the terms of the arbitration agreement controlling the mode of judicial review are unenforceable and severable.” 113 Fed. Appx. 272, 272–273 (2004). The Circuit instructed the District Court on remand to “return to the application to confirm the original arbitration award (not the subsequent award revised after reversal), and … confirm that award, unless … the award should be vacated on the grounds allowable under 9 U. S. C. §10, or modified or corrected under the grounds allowable under 9 U. S. C. §11.” Id., at 273. After the District Court again held for Hall Street and the Ninth Circuit again reversed,[Footnote 1] we granted certiorari to decide whether the grounds for vacatur and modification provided by §§10 and 11 of the FAA are exclusive. 550 U. S. __ (2007). We agree with the Ninth Circuit that they are, but vacate and remand for consideration of independent issues. II Congress enacted the FAA to replace judicial indisposition to arbitration with a “national policy favoring [it] and plac[ing] arbitration agreements on equal footing with all other contracts.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443 (2006). As for jurisdiction over controversies touching arbitration, the Act does nothing, being “something of an anomaly in the field of federal-court jurisdiction” in bestowing no federal jurisdiction but rather requiring an independent jurisdictional basis. Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 25, n. 32 (1983); see, e.g., 9 U. S. C. §4 (providing for action by a federal district court “which, save for such [arbitration] agreement, would have jurisdiction under title 28”).[Footnote 2] But in cases falling within a court’s jurisdiction, the Act makes contracts to arbitrate “valid, irrevocable, and enforceable,” so long as their subject involves “commerce.” §2. And this is so whether an agreement has a broad reach or goes just to one dispute, and whether enforcement be sought in state court or federal. See ibid.; Southland Corp. v. Keating, 465 U. S. 1, 15–16 (1984). The Act also supplies mechanisms for enforcing arbitration awards: a judicial decree confirming an award, an order vacating it, or an order modifying or correcting it. §§9–11. An application for any of these orders will get streamlined treatment as a motion, obviating the separate contract action that would usually be necessary to enforce or tinker with an arbitral award in court.[Footnote 3] §6. Under the terms of §9, a court “must” confirm an arbitration award “unless” it is vacated, modified, or corrected “as prescribed” in §§10 and 11. Section 10 lists grounds for vacating an award, while §11 names those for modifying or correcting one.[Footnote 4] The Courts of Appeals have split over the exclusiveness of these statutory grounds when parties take the FAA shortcut to confirm, vacate, or modify an award, with some saying the recitations are exclusive, and others regarding them as mere threshold provisions open to expansion by agreement.[Footnote 5] As mentioned already, when this litigation started, the Ninth Circuit was on the threshold side of the split, see LaPine, 130 F. 3d, at 889, from which it later departed en banc in favor of the exclusivity view, see Kyocera, 341 F. 3d, at 1000, which it followed in this case, see 113 Fed. Appx., at 273. We now hold that §§10 and 11 respectively provide the FAA’s exclusive grounds for expedited vacatur and modification. III Hall Street makes two main efforts to show that the grounds set out for vacating or modifying an award are not exclusive, taking the position, first, that expandable judicial review authority has been accepted as the law since Wilko v. Swan, 346 U. S. 427 (1953). This, however, was not what Wilko decided, which was that §14 of the Securities Act of 1933 voided any agreement to arbitrate claims of violations of that Act, see id., at 437–438, a holding since overruled by Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). Although it is true that the Court’s discussion includes some language arguably favoring Hall Street’s position, arguable is as far as it goes. The Wilko Court was explaining that arbitration would undercut the Securities Act’s buyer protections when it remarked (citing FAA §10) that “[p]ower to vacate an [arbitration] award is limited,” 346 U. S., at 436, and went on to say that “the interpretations of the law by the arbitrators in contrast to manifest disregard [of the law] are not subject, in the federal courts, to judicial review for error in interpretation,” id., at 436–437. Hall Street reads this statement as recognizing “manifest disregard of the law” as a further ground for vacatur on top of those listed in §10, and some Circuits have read it the same way. See, e.g., McCarthy v. Citigroup Global Markets, Inc., 463 F. 3d 87, 91 (CA1 2006); Hoeft v. MVL Group, Inc., 343 F. 3d 57, 64 (CA2 2003); Prestige Ford v. Ford Dealer Computer Servs., Inc., 324 F. 3d 391, 395–396 (CA5 2003); Scott v. Prudential Securities, Inc., 141 F. 3d 1007, 1017 (CA11 1998). Hall Street sees this supposed addition to §10 as the camel’s nose: if judges can add grounds to vacate (or modify), so can contracting parties. But this is too much for Wilko to bear. Quite apart from its leap from a supposed judicial expansion by interpretation to a private expansion by contract, Hall Street overlooks the fact that the statement it relies on expressly rejects just what Hall Street asks for here, general review for an arbitrator’s legal errors. Then there is the vagueness of Wilko’s phrasing. Maybe the term “manifest disregard” was meant to name a new ground for review, but maybe it merely referred to the §10 grounds collectively, rather than adding to them. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 656 (1985) (Stevens, J., dissenting) (“Arbitration awards are only reviewable for manifest disregard of the law, 9 U. S. C. §§10, 207”); I/S Stavborg v. National Metal Converters, Inc., 500 F. 2d 424, 431 (CA2 1974). Or, as some courts have thought, “manifest disregard” may have been shorthand for §10(a)(3) or §10(a)(4), the subsections authorizing vacatur when the arbitrators were “guilty of misconduct” or “exceeded their powers.” See, e.g., Kyocera, supra, at 997. We, when speaking as a Court, have merely taken the Wilko language as we found it, without embellishment, see First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 942 (1995), and now that its meaning is implicated, we see no reason to accord it the significance that Hall Street urges. Second, Hall Street says that the agreement to review for legal error ought to prevail simply because arbitration is a creature of contract, and the FAA is “motivated, first and foremost, by a congressional desire to enforce agreements into which parties ha[ve] entered.” Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 220 (1985). But, again, we think the argument comes up short. Hall Street is certainly right that the FAA lets parties tailor some, even many features of arbitration by contract, including the way arbitrators are chosen, what their qualifications should be, which issues are arbitrable, along with procedure and choice of substantive law. But to rest this case on the general policy of treating arbitration agreements as enforceable as such would be to beg the question, which is whether the FAA has textual features at odds with enforcing a contract to expand judicial review following the arbitration. To that particular question we think the answer is yes, that the text compels a reading of the §§10 and 11 categories as exclusive. To begin with, even if we assumed §§10 and 11 could be supplemented to some extent, it would stretch basic interpretive principles to expand the stated grounds to the point of evidentiary and legal review generally. Sections 10 and 11, after all, address egregious departures from the parties’ agreed-upon arbitration: “corruption,” “fraud,” “evident partiality,” “misconduct,” “misbehavior,” “exceed[ing]… powers,” “evident material miscalculation,” “evident material mistake,” “award[s] upon a matter not submitted;” the only ground with any softer focus is “imperfect[ions],” and a court may correct those only if they go to “[a] matter of form not affecting the merits.” Given this emphasis on extreme arbitral conduct, the old rule of ejusdem generis has an implicit lesson to teach here. Under that rule, when a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows. Since a general term included in the text is normally so limited, then surely a statute with no textual hook for expansion cannot authorize contracting parties to supplement review for specific instances of outrageous conduct with review for just any legal error. “Fraud” and a mistake of law are not cut from the same cloth. That aside, expanding the detailed categories would rub too much against the grain of the §9 language, where provision for judicial confirmation carries no hint of flexibility. On application for an order confirming the arbitration award, the court “must grant” the order “unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.” There is nothing malleable about “must grant,” which unequivocally tells courts to grant confirmation in all cases, except when one of the “prescribed” exceptions applies. This does not sound remotely like a provision meant to tell a court what to do just in case the parties say nothing else.[Footnote 6] In fact, anyone who thinks Congress might have understood §9 as a default provision should turn back to §5 for an example of what Congress thought a default provision would look like: “[i]f in the agreement provision be made for a method of naming or appointing an arbitrator… such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, … then upon the application of either party to the controversy the court shall designate and appoint an arbitrator… .” “[I]f no method be provided” is a far cry from “must grant … unless” in §9. Instead of fighting the text, it makes more sense to see the three provisions, §§9–11, as substantiating a national policy favoring arbitration with just the limited review needed to maintain arbitration’s essential virtue of resolving disputes straightaway. Any other reading opens the door to the full-bore legal and evidentiary appeals that can “rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process,” Kyocera, 341 F. 3d, at 998; cf. Ethyl Corp. v. United Steelworkers of America, 768 F. 2d 180, 184 (CA7 1985), and bring arbitration theory to grief in post-arbitration process. Nor is Dean Witter, 470 U. S. 213, to the contrary, as Hall Street claims it to be. Dean Witter held that state-law claims subject to an agreement to arbitrate could not be remitted to a district court considering a related, nonarbitrable federal claim; the state-law claims were to go to arbitration immediately. Id., at 217. Despite the opinion’s language “reject[ing] the suggestion that the overriding goal of the [FAA] was to promote the expeditious resolution of claims,” id., at 219, the holding mandated immediate enforcement of an arbitration agreement; the Court was merely trying to explain that the inefficiency and difficulty of conducting simultaneous arbitration and federal-court litigation was not a good enough reason to defer the arbitration, see id., at 217. When all these arguments based on prior legal authority are done with, Hall Street and Mattel remain at odds over what happens next. Hall Street and its amici say parties will flee from arbitration if expanded review is not open to them. See, e.g., Brief for Petitioner 39; Brief for New England Legal Foundation et al. as Amici Curiae 15. One of Mattel’s amici foresees flight from the courts if it is. See Brief for U. S. Council for Int’l Business as Amicus Curiae 29–30. We do not know who, if anyone, is right, and so cannot say whether the exclusivity reading of the statute is more of a threat to the popularity of arbitrators or to that of courts. But whatever the consequences of our holding, the statutory text gives us no business to expand the statutory grounds.[Footnote 7] IV In holding that §§10 and 11 provide exclusive regimes for the review provided by the statute, we do not purport to say that they exclude more searching review based on authority outside the statute as well. The FAA is not the only way into court for parties wanting review of arbitration awards: they may contemplate enforcement under state statutory or common law, for example, where judicial review of different scope is arguable. But here we speak only to the scope of the expeditious judicial review under §§9, 10, and 11, deciding nothing about other possible avenues for judicial enforcement of arbitration awards. Although one such avenue is now claimed to be revealed in the procedural history of this case, no claim to it was presented when the case arrived on our doorstep, and no reason then appeared to us for treating this as anything but an FAA case. There was never any question about meeting the FAA §2 requirement that the leases from which the dispute arose be contracts “involving commerce.” 9 U. S. C. §2; see Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 277 (1995) (§2 “exercise[s] Congress’ commerce power to the full”). Nor is there any doubt now that the parties at least had the FAA in mind at the outset; the arbitration agreement even incorporates FAA §7, empowering arbitrators to compel attendance of witnesses. App. to Pet. for Cert. 13a. While it is true that the agreement does not expressly invoke FAA §9, §10, or §11, and none of the various motions to vacate or modify the award expressly said that the parties were relying on the FAA, the District Court apparently thought it was applying the FAA when it alluded to the Act in quoting LaPine, 130 F. 3d, at 889, for the then-unexceptional proposition that “ ‘[f]ederal courts can expand their review of an arbitration award beyond the FAA’s grounds, when … the parties have so agreed.’ ” App. to Pet. for Cert. 46a. And the Ninth Circuit, for its part, seemed to take it as a given that the District Court’s direct and prompt examination of the award depended on the FAA; it found the expanded-review provision unenforceable under Kyocera and remanded for confirmation of the original award “unless the district court determines that the award should be vacated on the grounds allowable under 9 U. S. C. §10, or modified or corrected under the grounds allowable under 9 U. S. C. §11.” 113 Fed. Appx., at 273. In the petition for certiorari and the principal briefing before us, the parties acted on the same premise. See, e.g., Pet. for Cert. 27 (“This Court should accept review to resolve this important issue of statutory construction under the FAA”); Brief for Petitioner 16 (“Because arbitration provisions providing for judicial review of arbitration awards for legal error are consistent with the goals and policies of the FAA and employ a standard of review which district courts regularly apply in a variety of contexts, those provisions are entitled to enforcement under the FAA”). One unusual feature, however, prompted some of us to question whether the case should be approached another way. The arbitration agreement was entered into in the course of district-court litigation, was submitted to the District Court as a request to deviate from the standard sequence of trial procedure, and was adopted by the District Court as an order. See App. 46–47; App. to Pet. for Cert. 4a–8a. Hence a question raised by this Court at oral argument: should the agreement be treated as an exercise of the District Court’s authority to manage its cases under Federal Rules of Civil Procedure 16? See, e.g., Tr. of Oral Arg. 11–12. Supplemental briefing at the Court’s behest joined issue on the question, and it appears that Hall Street suggested something along these lines in the Court of Appeals, which did not address the suggestion. We are, however, in no position to address the question now, beyond noting the claim of relevant case management authority independent of the FAA. The parties’ supplemental arguments on the subject in this Court implicate issues of waiver and the relation of the FAA both to Rule 16 and the Alternative Dispute Resolution Act of 1998, 28 U. S. C. §651 et seq., none of which has been considered previously in this litigation, or could be well addressed for the first time here. We express no opinion on these matters beyond leaving them open for Hall Street to press on remand. If the Court of Appeals finds they are open, the court may consider whether the District Court’s authority to manage litigation independently warranted that court’s order on the mode of resolving the indemnification issues remaining in this case. * * * Although we agree with the Ninth Circuit that the FAA confines its expedited judicial review to the grounds listed in 9 U. S. C. §§10 and 11, we vacate the judgment and remand the case for proceedings consistent with this opinion. It is so ordered. * Justice Scalia joins all but footnote 7 of this opinion. Footnote 1 On remand, the District Court vacated the arbitration award, because it supposedly rested on an implausible interpretation of the lease and thus exceeded the arbitrator’s powers, in violation of 9 U. S. C. §10. Mattel appealed, and the Ninth Circuit reversed, holding that implausibility is not a valid ground for vacating or correcting an award under §10 or §11. 196 Fed. Appx. 476, 477–478 (2006). Footnote 2 Because the FAA is not jurisdictional, there is no merit in the argument that enforcing the arbitration agreement’s judicial review provision would create federal jurisdiction by private contract. The issue is entirely about the scope of judicial review permissible under the FAA. Footnote 3 Unlike Justice Stevens, see post, at 2 (dissenting opinion), we understand this expedited review to be what each of the parties understood it was seeking from time to time; neither party’s pleadings were amended to raise an independent state-law contract claim or defense specific to the arbitration agreement. Footnote 4 Title 9 U. S. C. §10(a) (2000 ed., Supp. V) provides: “(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration— “(1) where the award was procured by corruption, fraud, or undue means; “(2) where there was evident partiality or corruption in the arbitrators, or either of them; “(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or “(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” Title 9 U. S. C. §11 (2000 ed.) provides: “In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration— “(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award. “(b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted. “(c) Where the award is imperfect in matter of form not affecting the merits of the controversy. “The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties.” Footnote 5 The Ninth and Tenth Circuits have held that parties may not contract for expanded judicial review. See Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F. 3d 987, 1000 (CA9 2003); Bowen v. Amoco Pipeline Co., 254 F. 3d 925, 936 (CA10 2001). The First, Third, Fifth, and Sixth Circuits, meanwhile, have held that parties may so contract. See Puerto Rico Tel. Co. v. U. S. Phone Mfg. Corp., 427 F. 3d 21, 31 (CA1 2005); Jacada (Europe), Ltd. v. International Marketing Strategies, Inc., 401 F. 3d 701, 710 (CA6 2005); Roadway Package System, Inc. v. Kayser, 257 F. 3d 287, 288 (CA3 2001); Gateway Technologies, Inc. v. MCI Telecommunications Corp., 64 F. 3d 993, 997 (CA5 1995). The Fourth Circuit has taken the latter side of the split in an unpublished opinion, see Syncor Int’l Corp. v. McLeland, 120 F. 3d 262 (1997), while the Eighth Circuit has expressed agreement with the former side in dicta, see UHC Management Co. v. Computer Sciences Corp., 148 F. 3d 992, 997–998 (1998). Footnote 6 Hall Street claims that §9 supports its position, because it allows a court to confirm an award only “[i]f the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration.” Hall Street argues that this language “expresses Congress’s intent that a court must enforce the agreement of the parties as to whether, and under what circumstances, a judgment shall be entered.” Reply Brief for Petitioner 5; see also Brief for Petitioner 22–24. It is a peculiar argument, converting agreement as a necessary condition for judicial enforcement into a sufficient condition for a court to bar enforcement. And the text is otherwise problematical for Hall Street: §9 says that if the parties have agreed to judicial enforcement, the court “must grant” confirmation unless grounds for vacatur or modification exist under §10 or §11. The sentence nowhere predicates the court’s judicial action on the parties’ having agreed to specific standards; if anything, it suggests that, so long as the parties contemplated judicial enforcement, the court must undertake such enforcement under the statutory criteria. In any case, the arbitration agreement here did not specifically predicate entry of judgment on adherence to its judicial-review standard. See App. to Pet. for Cert. 15a. To the extent Hall Street argues otherwise, it contests not the meaning of the FAA but the Ninth Circuit’s severability analysis, upon which it did not seek certiorari. Footnote 7 The history of the FAA is consistent with our conclusion. The text of the FAA was based upon that of New York’s arbitration statute. See S. Rep. No. 536, 68th Cong., 1st Sess., 3 (1924) (“The bill … follows the lines of the New York arbitration law enacted in 1920 …”). The New York Arbitration Law incorporated pre-existing provisions of the New York Code of Civil Procedure. See 1920 N. Y. Laws p. 806. Section 2373 of the code said that, upon application by a party for a confirmation order, “the court must grant such an order, unless the award is vacated, modified, or corrected, as prescribed by the next two sections.” 2 N. Y. Ann. Code Civ. Proc. (Stover 6th ed. 1902) (hereinafter Stover). The subsequent sections gave grounds for vacatur and modification or correction virtually identical to the 9 U. S. C. §§10 and 11 grounds. See 2 Stover §§2374, 2375. In a brief submitted to the House and Senate Subcommittees of the Committees on the Judiciary, Julius Henry Cohen, one of the primary drafters of both the 1920 New York Act and the proposed FAA, said, “The grounds for vacating, modifying, or correcting an award are limited. If the award [meets a condition of §10], then and then only the award may be vacated. … If there was [an error under §11], then and then only it may be modified or corrected … .” Arbitration of Interstate Commercial Disputes, Joint Hearings before the Subcommittees of the Committees on the Judiciary on S. 1005 and H. R. 646, 68th Cong., 1st Sess., 34 (1924). The House Report similarly recognized that an “award may … be entered as a judgment, subject to attack by the other party for fraud and corruption and similar undue influence, or for palpable error in form.” H. R. Rep. No. 96, 68th Cong., 1st Sess., 2 (1924). In a contemporaneous campaign for the promulgation of a uniform state arbitration law, Cohen contrasted the New York Act with the Illinois Arbitration and Awards Act of 1917, which required an arbitrator, at the request of either party, to submit any question of law arising during arbitration to judicial determination. See Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings 97–98 (1924); 1917 Ill. Laws p. 203.
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554.US.164
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After Indiana charged respondent Edwards with attempted murder and other crimes for a shooting during his attempt to steal a pair of shoes, his mental condition became the subject of three competency proceedings and two self-representation requests, mostly before the same trial judge. Referring to the lengthy record of psychiatric reports, the trial court noted that Edwards suffered from schizophrenia and concluded that, although it appeared he was competent to stand trial, he was not competent to defend himself at trial. The court therefore denied Edwards’ self-representation request. He was represented by appointed counsel at trial and convicted on two counts. Indiana’s intermediate appellate court ordered a new trial, agreeing with Edwards that the trial court’s refusal to permit him to represent himself deprived him of his constitutional right of self-representation under the Sixth Amendment and Faretta v. California, 422 U. S. 806. Although finding that the record provided substantial support for the trial court’s ruling, the Indiana Supreme Court nonetheless affirmed the intermediate appellate court on the ground that Faretta and Godinez v. Moran, 509 U. S. 389, required the State to allow Edwards to represent himself. Held: The Constitution does not forbid States from insisting upon representation by counsel for those competent enough to stand trial but who suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Pp. 4–13. (a) This Court’s precedents frame the question presented, but they do not answer it. Dusky v. United States, 362 U. S. 402, and Drope v. Missouri, 420 U. S. 162, 171, set forth the Constitution’s “mental competence” standard forbidding the trial of an individual lacking a rational and factual understanding of the proceedings and sufficient ability to consult with his lawyer with a reasonable degree of rational understanding. But those cases did not consider the issue presented here, namely, the relation of that “mental competence” standard to the self-representation right. Similarly the Court’s foundational “self-representation” case, Faretta, supra—which held that the Sixth and Fourteenth Amendments include a “constitutional right to proceed without counsel when” a criminal defendant “voluntarily and intelligently elects to do so,” 422 U. S., at 807—does not answer the question as to the scope of the self-representation right. Finally, although Godinez, supra, presents a question closer to the one at issue in that it focused upon a borderline-competent defendant who had asked a state trial court to permit him to represent himself and to change his pleas from not guilty to guilty, Godinez provides no answer here because that defendant’s ability to conduct a defense at trial was expressly not at issue in that case, see 509 U. S., at 399–400, and because the case’s constitutional holding that a State may permit a gray-area defendant to represent himself does not tell a State whether it may deny such a defendant the right to represent himself at his trial. Pp. 4–8. (b) Several considerations taken together lead the Court to conclude that the Constitution permits a State to limit a defendant’s self-representation right by insisting upon trial counsel when the defendant lacks the mental competency to conduct his trial defense unless represented. First, the Court’s precedent, while not answering the question, points slightly in that direction. By setting forth a standard that focuses directly upon a defendant’s ability to consult with his lawyer, Dusky and Drope assume representation by counsel and emphasize counsel’s importance, thus suggesting (though not holding) that choosing to forgo trial counsel presents a very different set of circumstances than the mental competency determination for a defendant to stand trial. Also, Faretta rested its self-representation conclusion in part on pre-existing state cases that are consistent with, and at least two of which expressly adopt, a competency limitation on the self-representation right. See 422 U. S., at 813, and n. 9. Second, the nature of mental illness—which is not a unitary concept, but varies in degree, can vary over time, and interferes with an individual’s functioning at different times in different ways—cautions against using a single competency standard to decide both whether a defendant who is represented can proceed to trial and whether a defendant who goes to trial must be permitted to represent himself. Third, a self-representation right at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel, see McKaskle v. Wiggins, 465 U. S. 168, 176–177, and may undercut the most basic of the Constitution’s criminal law objectives, providing a fair trial. The trial judge—particularly one such as the judge in this case, who presided over one of Edwards’ competency hearings and his two trials—will often prove best able to make more fine-tuned mental capacity decisions, tailored to the particular defendant’s individualized circumstances. Pp. 8–12. (c) Indiana’s proposed standard, which would deny a criminal defendant the right to represent himself at trial if he cannot communicate coherently with the court or a jury, is rejected because this Court is uncertain as to how that standard would work in practice. The Court also declines Indiana’s request to overrule Faretta because today’s opinion may well remedy the unfair trial concerns previously leveled against the case. Pp. 12–13. 866 N. E. 2d 252, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined.
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This case focuses upon a criminal defendant whom a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself. We must decide whether in these circumstances the Constitution forbids a State from insisting that the defendant proceed to trial with counsel, the State thereby denying the defendant the right to represent himself. See U. S. Const., Amdt. 6; Faretta v. California, 422 U. S. 806 (1975). We conclude that the Constitution does not forbid a State so to insist. I In July 1999 Ahmad Edwards, the respondent, tried to steal a pair of shoes from an Indiana department store. After he was discovered, he drew a gun, fired at a store security officer, and wounded a bystander. He was caught and then charged with attempted murder, battery with a deadly weapon, criminal recklessness, and theft. His mental condition subsequently became the subject of three competency proceedings and two self-representation requests, mostly before the same trial judge: 1. First Competency Hearing: August 2000. Five months after Edwards’ arrest, his court-appointed counsel asked for a psychiatric evaluation. After hearing psychiatrist and neuropsychologist witnesses (in February 2000 and again in August 2000), the court found Edwards incompetent to stand trial, App. 365a, and committed him to Logansport State Hospital for evaluation and treatment, see id., at 48a–53a. 2. Second Competency Hearing: March 2002. Seven months after his commitment, doctors found that Edwards’ condition had improved to the point where he could stand trial. Id., at 63a–64a. Several months later, however, but still before trial, Edwards’ counsel asked for another psychiatric evaluation. In March 2002, the judge held a competency hearing, considered additional psychiatric evidence, and (in April) found that Edwards, while “suffer[ing] from mental illness,” was “competent to assist his attorneys in his defense and stand trial for the charged crimes.” Id., at 114a. 3. Third Competency Hearing: April 2003. Seven months later but still before trial, Edwards’ counsel sought yet another psychiatric evaluation of his client. And, in April 2003, the court held yet another competency hearing. Edwards’ counsel presented further psychiatric and neuropsychological evidence showing that Edwards was suffering from serious thinking difficulties and delusions. A testifying psychiatrist reported that Edwards could understand the charges against him, but he was “unable to cooperate with his attorney in his defense because of his schizophrenic illness”; “[h]is delusions and his marked difficulties in thinking make it impossible for him to cooperate with his attorney.” Id., at 164a. In November 2003, the court concluded that Edwards was not then competent to stand trial and ordered his recommitment to the state hospital. Id., at 206a–211a. 4. First Self-Representation Request and First Trial: June 2005. About eight months after his commitment, the hospital reported that Edwards’ condition had again improved to the point that he had again become competent to stand trial. Id., at 228a–236a. And almost one year after that Edwards’ trial began. Just before trial, Edwards asked to represent himself. Id., at 509a, 520a. He also asked for a continuance, which, he said, he needed in order to proceed pro se. Id., at 519a–520a. The court refused the continuance. Id., at 520a. Edwards then proceeded to trial represented by counsel. The jury convicted him of criminal recklessness and theft but failed to reach a verdict on the charges of attempted murder and battery. 5. Second Self-Representation Request and Second Trial: December 2005. The State decided to retry Edwards on the attempted murder and battery charges. Just before the retrial, Edwards again asked the court to permit him to represent himself. Id., at 279a–282a. Referring to the lengthy record of psychiatric reports, the trial court noted that Edwards still suffered from schizophrenia and concluded that “[w]ith these findings, he’s competent to stand trial but I’m not going to find he’s competent to defend himself.” Id., at 527a. The court denied Edwards’ self-representation request. Edwards was represented by appointed counsel at his retrial. The jury convicted Edwards on both of the remaining counts. Edwards subsequently appealed to Indiana’s intermediate appellate court. He argued that the trial court’s refusal to permit him to represent himself at his retrial deprived him of his constitutional right of self-representation. U. S. Const., Amdt. 6; Faretta, supra. The court agreed and ordered a new trial. The matter then went to the Indiana Supreme Court. That court found that “[t]he record in this case presents a substantial basis to agree with the trial court,” 866 N. E. 2d 252, 260 (2007), but it nonetheless affirmed the intermediate appellate court on the belief that this Court’s precedents, namely, Faretta, 422 U. S. 806, and Godinez v. Moran, 509 U. S. 389 (1993), required the State to allow Edwards to represent himself. At Indiana’s request, we agreed to consider whether the Constitution required the trial court to allow Edwards to represent himself at trial. II Our examination of this Court’s precedents convinces us that those precedents frame the question presented, but they do not answer it. The two cases that set forth the Constitution’s “mental competence” standard, Dusky v. United States, 362 U. S. 402 (1960) (per curiam), and Drope v. Missouri, 420 U. S. 162 (1975), specify that the Constitution does not permit trial of an individual who lacks “mental competency.” Dusky defines the competency standard as including both (1) “whether” the defendant has “a rational as well as factual understanding of the proceedings against him” and (2) whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” 362 U. S., at 402 (emphasis added; internal quotation marks omitted). Drope repeats that standard, stating that it “has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” 420 U. S., at 171 (emphasis added). Neither case considered the mental competency issue presented here, namely, the relation of the mental competence standard to the right of self-representation. The Court’s foundational “self-representation” case, Faretta, held that the Sixth and Fourteenth Amendments include a “constitutional right to proceed without counsel when” a criminal defendant “voluntarily and intelligently elects to do so.” 422 U. S., at 807 (emphasis in original). The Court implied that right from: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so,” id., at 817–818; (2) Sixth Amendment language granting rights to the “accused;” (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused, id., at 818–821; (4) the absence of historical examples of forced representation, id., at 821–832; and (5) “ ‘respect for the individual,’ ” id., at 834 (quoting Illinois v. Allen, 397 U. S. 337, 350–351 (1970) (Brennan, J., concurring) (a knowing and intelligent waiver of counsel “must be honored out of ‘that respect for the individual which is the lifeblood of the law’ ”)). Faretta does not answer the question before us both because it did not consider the problem of mental competency (cf. 422 U. S., at 835 (Faretta was “literate, competent, and understanding”)), and because Faretta itself and later cases have made clear that the right of self-representation is not absolute. See Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U. S. 152, 163 (2000) (no right of self-representation on direct appeal in a criminal case); McKaskle v. Wiggins, 465 U. S. 168, 178–179 (1984) (appointment of standby counsel over self-represented defendant’s objection is permissible); Faretta, 422 U. S., at 835, n. 46 (no right “to abuse the dignity of the courtroom”); ibid. (no right to avoid compliance with “relevant rules of procedural and substantive law”); id., at 834, n. 46 (no right to “engag[e] in serious and obstructionist misconduct,” referring to Illinois v. Allen, supra). The question here concerns a mental-illness-related limitation on the scope of the self-representation right. The sole case in which this Court considered mental competence and self-representation together, Godinez, supra, presents a question closer to that at issue here. The case focused upon a borderline-competent criminal defendant who had asked a state trial court to permit him to represent himself and to change his pleas from not guilty to guilty. The state trial court had found that the defendant met Dusky’s mental competence standard, that he “knowingly and intelligently” waived his right to assistance of counsel, and that he “freely and voluntarily” chose to plead guilty. 509 U. S., at 393 (internal quotation marks omitted). And the state trial court had consequently granted the defendant’s self-representation and change-of-plea requests. See id., at 392–393. A federal appeals court, however, had vacated the defendant’s guilty pleas on the ground that the Constitution required the trial court to ask a further question, namely, whether the defendant was competent to waive his constitutional right to counsel. See id., at 393–394. Competence to make that latter decision, the appeals court said, required the defendant to satisfy a higher mental competency standard than the standard set forth in Dusky. See 509 U. S., at 393–394. Dusky’s more general standard sought only to determine whether a defendant represented by counsel was competent to stand trial, not whether he was competent to waive his right to counsel. 509 U. S., at 394–395. This Court, reversing the Court of Appeals, “reject[ed] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard.” Id., at 398. The decision to plead guilty, we said, “is no more complicated than the sum total of decisions that a [represented] defendant may be called upon to make during the course of a trial.” Ibid. Hence “there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” Id., at 399. And even assuming that self-representation might pose special trial-related difficulties, “the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Ibid. (emphasis in original). For this reason, we concluded, “the defendant’s ‘technical legal knowledge’ is ‘not relevant’ to the determination.” Id., at 400 (quoting Faretta, supra, at 836). We concede that Godinez bears certain similarities with the present case. Both involve mental competence and self-representation. Both involve a defendant who wants to represent himself. Both involve a mental condition that falls in a gray area between Dusky’s minimal constitutional requirement that measures a defendant’s ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose. We nonetheless conclude that Godinez does not answer the question before us now. In part that is because the Court of Appeals higher standard at issue in Godinez differs in a critical way from the higher standard at issue here. In Godinez, the higher standard sought to measure the defendant’s ability to proceed on his own to enter a guilty plea; here the higher standard seeks to measure the defendant’s ability to conduct trial proceedings. To put the matter more specifically, the Godinez defendant sought only to change his pleas to guilty, he did not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue. Thus we emphasized in Godinez that we needed to consider only the defendant’s “competence to waive the right.” 509 U. S., at 399 (emphasis in original). And we further emphasized that we need not consider the defendant’s “technical legal knowledge” about how to proceed at trial. Id., at 400 (internal quotation marks omitted). We found our holding consistent with this Court’s earlier statement in Massey v. Moore, 348 U. S. 105, 108 (1954), that “[o]ne might not be insane in the sense of being incapable of standing trial and yet lack the capacity to stand trial without benefit of counsel.” See Godinez, supra, at 399–400, n. 10 (quoting Massey and noting that it dealt with “a question that is quite different from the question presented” in Godinez). In this case, the very matters that we did not consider in Godinez are directly before us. For another thing, Godinez involved a State that sought to permit a gray-area defendant to represent himself. Godinez’s constitutional holding is that a State may do so. But that holding simply does not tell a State whether it may deny a gray-area defendant the right to represent himself—the matter at issue here. One might argue that Godinez’s grant (to a State) of permission to allow a gray-area defendant self-representation must implicitly include permission to deny self-representation. Cf. 509 U. S., at 402 (“States are free to adopt competency standards that are more elaborate than the Dusky formulation”). Yet one could more forcefully argue that Godinez simply did not consider whether the Constitution requires self-representation by gray-area defendants even in circumstances where the State seeks to disallow it (the question here). The upshot is that, in our view, the question before us is an open one. III We now turn to the question presented. We assume that a criminal defendant has sufficient mental competence to stand trial (i.e., the defendant meets Dusky’s standard) and that the defendant insists on representing himself during that trial. We ask whether the Constitution permits a State to limit that defendant’s self-representation right by insisting upon representation by counsel at trial—on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented. Several considerations taken together lead us to conclude that the answer to this question is yes. First, the Court’s precedent, while not answering the question, points slightly in the direction of our affirmative answer. Godinez, as we have just said, simply leaves the question open. But the Court’s “mental competency” cases set forth a standard that focuses directly upon a defendant’s “present ability to consult with his lawyer,” Dusky, 362 U. S., at 402 (internal quotation marks omitted); a “capacity … to consult with counsel,” and an ability “to assist [counsel] in preparing his defense,” Drope, 420 U. S., at 171. See ibid. (“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial” (emphasis added)). These standards assume representation by counsel and emphasize the importance of counsel. They thus suggest (though do not hold) that an instance in which a defendant who would choose to forgo counsel at trial presents a very different set of circumstances, which in our view, calls for a different standard. At the same time Faretta, the foundational self-representation case, rested its conclusion in part upon pre-existing state law set forth in cases all of which are consistent with, and at least two of which expressly adopt, a competency limitation on the self-representation right. See 422 U. S., at 813, and n. 9 (citing 16 state-court decisions and two secondary sources). See, e.g., Cappetta v. State, 204 So. 2d 913, 917–918 (Fla. App. 1967), rev’d on other grounds, 216 So. 2d 749 (Fla. 1968), cited in Faretta, supra, at 813, n. 9 (assuring a “mentally competent” defendant the right “to conduct his own defense” provided that “no unusual circumstances exist” such as, e.g., “mental derangement” that “would … depriv[e]” the defendant “of a fair trial if allowed to conduct his own defense,” 204 So. 2d, at 917–918); id., at 918 (noting that “whether unusual circumstances are evident is a matter resting in the sound discretion granted to the trial judge”); Allen v. Commonwealth, 324 Mass. 558, 562–563, 87 N. E. 2d 192, 195 (1949) (noting “the assignment of counsel” was “necessary” where there was some “special circumstance” such as when the criminal defendant was “mentally defective”). Second, the nature of the problem before us cautions against the use of a single mental competency standard for deciding both (1) whether a defendant who is represented by counsel can proceed to trial and (2) whether a defendant who goes to trial must be permitted to represent himself. Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s functioning at different times in different ways. The history of this case (set forth in Part I, supra) illustrates the complexity of the problem. In certain instances an individual may well be able to satisfy Dusky’s mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel. See, e.g., N. Poythress, R. Bonnie, J. Monahan, R. Otto, & S. Hoge, Adjudicative Competence: The MacArthur Studies 103 (2002) (“Within each domain of adjudicative competence (competence to assist counsel; decisional competence) the data indicate that understanding, reasoning, and appreciation [of the charges against a defendant] are separable and somewhat independent aspects of functional legal ability”). See also McKaskle, 465 U. S., at 174 (describing trial tasks as including organization of defense, making motions, arguing points of law, participating in voir dire, questioning witnesses, and addressing the court and jury). The American Psychiatric Association (APA) tells us (without dispute) in its amicus brief filed in support of neither party that “[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant’s ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.” Brief for APA et al. as Amici Curiae 26. Motions and other documents that the defendant prepared in this case (one of which we include in the Appendix, infra) suggest to a layperson the common sense of this general conclusion. Third, in our view, a right of self-representation at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel. McKaskle, supra, at 176–177 (“Dignity” and “autonomy” of individual underlie self-representation right). To the contrary, given that defendant’s uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling. Moreover, insofar as a defendant’s lack of capacity threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution’s criminal law objectives, providing a fair trial. As Justice Brennan put it, “[t]he Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes.” Allen, 397 U. S., at 350 (concurring opinion). See Martinez, 528 U. S., at 162 (“Even at the trial level … the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer”). See also Sell v. United States, 539 U. S. 166, 180 (2003) (“[T]he Government has a concomitant, constitutionally essential interest in assuring that the defendant’s trial is a fair one”). Further, proceedings must not only be fair, they must “appear fair to all who observe them.” Wheat v. United States, 486 U. S. 153, 160 (1988). An amicus brief reports one psychiatrist’s reaction to having observed a patient (a patient who had satisfied Dusky) try to conduct his own defense: “[H]ow in the world can our legal system allow an insane man to defend himself?” Brief for Ohio et al. as Amici Curiae 24 (internal quotation marks omitted). See Massey, 348 U. S., at 108 (“No trial can be fair that leaves the defense to a man who is insane, unaided by counsel, and who by reason of his mental condition stands helpless and alone before the court”). The application of Dusky’s basic mental competence standard can help in part to avoid this result. But given the different capacities needed to proceed to trial without counsel, there is little reason to believe that Dusky alone is sufficient. At the same time, the trial judge, particularly one such as the trial judge in this case, who presided over one of Edwards’ competency hearings and his two trials, will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant. We consequently conclude that the Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. IV Indiana has also asked us to adopt, as a measure of a defendant’s ability to conduct a trial, a more specific standard that would “deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury.” Brief for Petitioner 20 (emphasis deleted). We are sufficiently uncertain, however, as to how that particular standard would work in practice to refrain from endorsing it as a federal constitutional standard here. We need not now, and we do not, adopt it. Indiana has also asked us to overrule Faretta. We decline to do so. We recognize that judges have sometimes expressed concern that Faretta, contrary to its intent, has led to trials that are unfair. See Martinez, supra, at 164 (Breyer, J., concurring) (noting practical concerns of trial judges). But recent empirical research suggests that such instances are not common. See, e.g., Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N. C. L. Rev. 423, 427, 447, 428 (2007) (noting that of the small number of defendants who chose to proceed pro se—“roughly 0.3% to 0.5%” of the total, state felony defendants in particular “appear to have achieved higher felony acquittal rates than their represented counterparts in that they were less likely to have been convicted of felonies”). At the same time, instances in which the trial’s fairness is in doubt may well be concentrated in the 20 percent or so of self-representation cases where the mental competence of the defendant is also at issue. See id., at 428 (about 20 percent of federal pro se felony defendants ordered to undergo competency evaluations). If so, today’s opinion, assuring trial judges the authority to deal appropriately with cases in the latter category, may well alleviate those fair trial concerns. For these reasons, the judgment of the Supreme Court of Indiana is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. APPENDIX Excerpt from respondent’s filing entitled “ ‘Defendant’s Version of the Instant Offense,’ ” which he had attached to his presentence investigation report: “ ‘The appointed motion of permissive intervention filed therein the court superior on, 6–26–01 caused a stay of action and apon it’s expiration or thereafter three years the plan to establish a youth program to and for the coordination of aspects of law enforcement to prevent and reduce crime amoung young people in Indiana became a diplomatic act as under the Safe Streets Act of 1967, “A omnibuc considerate agent: I membered clients within the public and others that at/production of the courts actions showcased causes. The costs of the stay (Trial Rule 60) has a derivative property that is: my knowledged events as not unexpended to contract the membered clients is the commission of finding a facilitie for this plan or project to become organization of administrative recommendations conditioned by governors.’ ” 866 N. E. 2d, at 258, n. 4 (alterations omitted).
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553.US.708
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Petitioner pleaded guilty to making a threatening interstate communication to his ex-wife, in violation of federal law. Although the presentence report recommended a Federal Sentencing Guidelines range of 41-to-51 months in prison, the court imposed the statutory maximum sentence—60 months in prison and 3 years of supervised release—rejecting petitioner’s objection that he was entitled to notice that the court was contemplating an upward departure. The Eleventh Circuit affirmed, reasoning that Federal Rule of Criminal Procedure 32(h), which states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified … either in the presentence report or in a party’s pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure,” did not apply because the sentence was a variance, not a Guidelines departure. Held: Rule 32(h) does not apply to a variance from a recommended Guidelines range. At the time that Burns v. United States, 501 U. S. 129, was decided, prompting Rule 32(h)’s promulgation, the Guidelines were mandatory; the Sentencing Reform Act of 1984 prohibited district courts from disregarding most of the Guidelines’ “mechanical dictates,” id., at 133. Confronted with the constitutional problems that might otherwise arise, the Burns Court held that the Rule 32 provision allowing parties to comment on the appropriate sentence—now Rule 32(i)(1)(C)—would be “render[ed] meaningless” unless the defendant were given notice of a contemplated departure. Id. at 135–136. Any constitutionally protected expectation that a defendant will receive a sentence within the presumptively applicable Guidelines range did not, however, survive United States v. Booker, 543 U. S. 220, which invalidated the Guidelines’ mandatory features. Faced with advisory Guidelines, neither the Government nor the defendant may place the same degree of reliance on the type of “expectancy” that gave rise to a special need for notice in Burns. Indeed, a sentence outside the Guidelines carries no presumption of unreasonableness. Gall v. United States, 552 U. S. ___, ___. Thus, the due process concerns motivating the Court to require notice in a mandatory Guidelines world no longer provide a basis for extending the Burns rule either through an interpretation of Rule 32(h) itself or through Rule 32(i)(C)(1). Nor does the rule apply to 18 U. S. C. §3553 variances by its terms. Although the Guidelines, as the “starting point and the initial benchmark,” continue to play a role in the sentencing determination, see Gall, 552 U. S., at ___, there is no longer a limit comparable to the one in Burns on variances from Guidelines ranges that a district court may find justified. This Court is confident that district judges and counsel have the ability—especially in light of Rule 32’s other procedural protections—to make sure that all relevant matters relating to a sentencing decision have been considered before a final determination is made. Pp. 5–8. 458 F. 3d 1208, affirmed. Stevens, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion. Breyer, J., filed a dissenting opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined.
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Rule 32(h) of the Federal Rules of Criminal Procedure, promulgated in response to our decision in Burns v. United States, 501 U. S. 129 (1991), states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.” The question presented by this case is whether that Rule applies to every sentence that is a variance from the recommended Federal Sen-tencing Guidelines range even though not considered a “departure” as that term was used when Rule 32(h) was promulgated. I Petitioner, Richard Irizarry, pleaded guilty to one count of making a threatening interstate communication, in violation of 18 U. S. C. §875(c). Petitioner made the following admissions in the factual resume accompanying his plea: (1) On November 5, 2003, he sent an e-mail threatening to kill his ex-wife and her new husband; (2) he had sent “dozens” of similar e-mails in violation of a restraining order; (3) he intended the e-mails to “convey true threats to kill or injure multiple persons”; and (4) at all times he acted knowingly and willfully. App. 273–275. The presentence report (PSR), in addition to describing the threatening e-mails, reported that petitioner had asked another inmate to kill his ex-wife’s new husband. Brief for United States 6. The PSR advised against an adjustment for acceptance of responsibility and recommended a Guidelines sentencing range of 41-to-51 months of imprisonment, based on enhancements for violating court protective orders, making multiple threats, and intending to carry out those threats. Brief for Petitioner 9. As possible grounds for a departure, the probation officer stated that petitioner’s criminal history category might not adequately reflect his “ ‘past criminal conduct or the likelihood that [petitioner] will commit other crimes.’ ” Ibid. The Government made no objection to the PSR, but advised the court that it intended to call petitioner’s ex-wife as a witness at the sentencing hearing. App. 293. Petitioner objected to the PSR’s application of the enhancement based on his intention to carry out the threats and its rejection of an adjustment for acceptance of responsibility. Id., at 295–296. Four witnesses testified at the sentencing hearing. Id., at 299. Petitioner’s ex-wife described incidents of domestic violence, the basis for the restraining order against petitioner, and the threats petitioner made against her and her family and friends. Id., at 307, 309, 314. She emphasized at some length her genuine concern that petitioner fully intended to carry out his threats. Id., at 320. A special agent of the Federal Bureau of Investigation was called to describe documents recovered from petitioner’s vehicle when he was arrested; those documents indicated he intended to track down his ex-wife and their children. Id., at 326–328. Petitioner’s cellmate next testified that petitioner “was obsessed with the idea of getting rid of” his ex-wife’s husband. Id., at 336. Finally, petitioner testified at some length, stating that he accepted responsibility for the e-mails, but that he did not really intend to carry out his threats. Id., at 361. Petitioner also denied speaking to his cellmate about killing his ex-wife’s husband. Id., at 356–357. After hearing from counsel, the trial judge delivered a thoughtful oral decision, which included findings resolving certain disputed issues of fact. She found that petitioner had deliberately terrorized his ex-wife, that he intended to carry out one or more of his threats, “that he still intends to terrorize Ms. Smith by whatever means he can and that he does not accept responsibility for what he has done.” Id., at 372. After giving both petitioner and counsel an opportunity to make further comment, the judge concluded: “I’ve considered all of the evidence presented today, I’ve considered everything that’s in the presentence report, and I’ve considered the statutory purpose of sentencing and the sentencing guideline range. I find the guideline range is not appropriate in this case. I find Mr. Irizarry’s conduct most disturbing. I am sincerely convinced that he will continue, as his ex-wife testified, in this conduct regardless of what this court does and regardless of what kind of supervision he’s under. And based upon that, I find that the maximum time that he can be incapacitated is what is best for society, and therefore the guideline range, I think, is not high enough. “The guideline range goes up to 51 months, which is only nine months shorter than the statutory maximum. But I think in Mr. Irizarry’s case the statutory maximum is what’s appropriate, and that’s what I’m going to sentence him.” Id., at 374–375. The court imposed a sentence of 60 months of imprisonment to be followed by a 3-year term of supervised release. Id., at 375. Defense counsel then raised the objection that presents the issue before us today. He stated, “We didn’t have notice of [the court’s] intent to upwardly depart. What the law is on that now with—,” to which the Court responded, “I think the law on that is out the window… . You had notice that the guidelines were only advisory and the court could sentence anywhere within the statutory range.” Id., at 377. The Court of Appeals for the Eleventh Circuit affirmed petitioner’s sentence, reasoning that Rule 32(h) did not apply because “the above-guidelines sentence imposed by the district court in this case was a variance, not a guidelines departure.” 458 F. 3d 1208, 1211 (2006) (per curiam). The Court of Appeals declined to extend the rule to variances. “After [United States v. Booker, 543 U. S. 220 (2005),] parties are inherently on notice that the sentencing guidelines range is advisory. . . . Given Booker, parties cannot claim unfair surprise or inability to present informed comment.” Id., at 1212. Because the Courts of Appeals are divided with respect to the applicability of Rule 32(h) to Guidelines variances,[Footnote 1] we granted certiorari. 552 U. S. ___ (2008). We now affirm. II At the time of our decision in Burns, the Guidelines were mandatory; the Sentencing Reform Act of 1984, §211 et seq., 98 Stat. 1987, prohibited district courts from disregarding “the mechanical dictates of the Guidelines” except in narrowly defined circumstances. 501 U. S., at 133. Confronted with the constitutional problems that might otherwise arise, we held that the provision of Rule 32 that allowed parties an opportunity to comment on the appropriate sentence—now Rule 32(i)(1)(C)—would be “render[ed] meaningless” unless the defendant were given notice of any contemplated departure. Id., at 135–136. Justice Souter disagreed with our conclusion with respect to the text of Rule 32 and conducted a due process analysis. Id., at 147 (dissenting opinion). Any expectation subject to due process protection at the time we decided Burns that a criminal defendant would receive a sentence within the presumptively applicable guideline range did not survive our decision in United States v. Booker, 543 U. S. 220 (2005), which invalidated the mandatory features of the Guidelines. Now faced with advisory Guidelines, neither the Government nor the defendant may place the same degree of reliance on the type of “expectancy” that gave rise to a special need for notice in Burns. Indeed, a sentence outside the Guidelines carries no presumption of unreasonableness. Gall v. United States, 552 U. S. ___, ___ (2007) (slip op., at 12); see also Rita v. United States, 551 U. S. ___ (2007). It is, therefore, no longer the case that “were we to read Rule 32 to dispense with notice [of a contemplated non-Guidelines sentence], we would then have to confront the serious question whether [such] notice in this setting is mandated by the Due Process Clause.” Burns, 501 U. S., at 138. The due process concerns that motivated the Court to require notice in a world of mandatory Guidelines no longer provide a basis for this Court to extend the rule set forth in Burns either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C). And contrary to what the dissent argues, post, at 1–2 (opinion of Breyer, J.), the rule does not apply to §3553 variances by its terms. “Departure” is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines. The notice requirement set out in Burns applied to a narrow category of cases. The only relevant departures were those authorized by 18 U. S. C. §3553(b) (1988 ed.), which required “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” That determination could only be made based on “the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” Ibid. And the notice requirement only applied to the subcategory of those departures that were based on “a ground not identified as a ground for . . . departure either in the presentence report or in a pre-hearing submission.” Burns, 501 U. S., at 138–139; see also Fed. Rule Crim. Proc. 32(h). Although the Guidelines, as the “starting point and the initial benchmark,” continue to play a role in the sentencing determination, see Gall, 552 U. S., at ___ (slip op., at 11), there is no longer a limit comparable to the one at issue in Burns on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. §3553(a) (2000 ed. and Supp. V). Rule 32(i)(1)(C) requires the district court to allow the parties to comment on “matters relating to an appropriate sentence,” and given the scope of the issues that may be considered at a sentencing hearing, a judge will normally be well-advised to withhold her final judgment until after the parties have had a full opportunity to present their evidence and their arguments. Sentencing is “a fluid and dynamic process and the court itself may not know until the end whether a variance will be adopted, let alone on what grounds.” United States v. Vega-Santiago, 519 F. 3d 1, 4 (CA1 2008) (en banc). Adding a special notice requirement whenever a judge is contemplating a variance may create unnecessary delay; a judge who concludes during the sentencing hearing that a variance is appropriate may be forced to continue the hearing even where the content of the Rule 32(h) notice would not affect the parties’ presentation of argument and evidence. In the case before us today, even if we assume that the judge had contemplated a variance before the sentencing hearing began, the record does not indicate that a statement announcing that possibility would have changed the parties’ presentations in any material way; nor do we think it would in most cases. The Government admits as much in arguing that the error here was harmless. Brief for United States 37–38. Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues. We recognize that there will be some cases in which the factual basis for a particular sentence will come as a surprise to a defendant or the Government. The more appropriate response to such a problem is not to extend the reach of Rule 32(h)’s notice requirement categorically, but rather for a district judge to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial. As Judge Boudin has noted, “In the normal case a competent lawyer . . . will anticipate most of what might occur at the sentencing hearing—based on the trial, the pre-sentence report, the exchanges of the parties concerning the report, and the preparation of mitigation evidence. Garden variety considerations of culpability, criminal history, likelihood of re-offense, seriousness of the crime, nature of the conduct and so forth should not generally come as a surprise to trial lawyers who have prepared for sentencing.” Vega-Santiago, 519 F. 3d, at 5. The fact that Rule 32(h) remains in effect today does not justify extending its protections to variances; the justification for our decision in Burns no longer exists and such an extension is apt to complicate rather than to simplify sentencing procedures. We have confidence in the ability of district judges and counsel—especially in light of Rule 32’s other procedural protections[Footnote 2]—to make sure that all relevant matters relating to a sentencing decision have been considered before the final sentencing determination is made. The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Compare United States v. Vega-Santiago, 519 F. 3d 1 (CA1 2008) (en banc); United States v. Vampire Nation, 451 F. 3d 189 (CA3 2006); United States v. Mejia-Huerta, 480 F. 3d 713 (CA5 2007); United States v. Long Soldier, 431 F. 3d 1120 (CA8 2005); and United States v. Walker, 447 F. 3d 999, 1006 (CA7 2006), with United States v. Anati, 457 F. 3d 233 (CA2 2006); United States v. Davenport, 445 F. 3d 366 (CA4 2006); United States v. Cousins, 469 F. 3d 572 (CA6 2006); United States v. Evans-Martinez, 448 F. 3d 1163 (CA9 2006); and United States v. Atencio, 476 F. 3d 1099 (CA10 2007). Footnote 2 Rule 32 requires that a defendant be given a copy of his PSR at least 35 days before sentencing, Fed. Rule Crim. Proc. 32(e)(2). Further, each party has 14 days to object to the PSR, Rule 32(f)(1), and at least 7 days before sentencing the probation officer must submit a final version of the PSR to the parties, stating any unresolved objections, Rule 32(g). Finally, at sentencing, the parties must be allowed to comment on “matters relating to an appropriate sentence,” Rule 32(i)(1)(C), and the defendant must be given an opportunity to speak and present mitigation testimony, Rule 32(i)(4)(A)(ii).
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552.US.130
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In a Court of Federal Claims action, petitioner argued that various federal activities on land for which it held a mining lease amounted to an unconstitutional taking of its leasehold rights. The Government initially asserted that the claims were untimely under the court of claims statute of limitations, but later effectively conceded that issue and won on the merits. Although the Government did not raise timeliness on appeal, the Federal Circuit addressed the issue sU. S.onte, finding the action untimely. Held: The court of claims statute of limitations requires sU. S.onte consideration of a lawsuit’s timeliness, despite the Government’s waiver of the issue. Pp. 2–9. (a) This Court has long interpreted the statute as setting out a more absolute, “jurisdictional” limitations period. For example, in 1883, the Court concluded with regard to the current statute’s predecessor that “it [was] the duty of the court to raise the [timeliness] question whether it [was] done by plea or not.” Kendall v. United States, 107 U. S. 123, 125–126. See also Finn v. United States, 123 U. S. 227, and Soriano v. United States, 352 U. S. 270. That the statute’s language has changed slightly since 1883 makes no difference here, for there has been no expression of congressional intent to change the underlying substantive law. Pp. 2–6. (b) Thus, petitioner can succeed only by convincing the Court that it has overturned, or should overturn, its earlier precedent. Pp. 6–9. (1) The Court did not do so in Irwin v. Department of Veterans Affairs, 498 U. S. 89, where it applied equitable tolling to a limitations statute governing employment discrimination claims against the Government. While the Irwin Court noted the similarity of that statute to the court of claims statute, the civil rights statute is unlike the present statute in the key respect that the Court had not previously provided a definitive interpretation. Moreover, the Irwin Court mentioned Soriano, which reflects the particular interpretive history of the court of claims statute, but said nothing about overturning it or any other case in that line. Finally, just as an equitable tolling presumption could be rebutted by statutory language demonstrating Congress’ contrary intent, it should be rebutted by a definitive earlier interpretation finding a similar congressional intent. Language in Franconia Associates v. United States, 536 U. S. 129, 145, describing the court of claims statute as “unexceptional” and citing Irwin for the proposition “that limitations principles should generally apply to the Government in the same way that they apply to private parties” refers only to the statute’s claims-accrual rule and adds little or nothing to petitioner’s contention that Irwin overruled earlier cases. Pp. 6–7. (2) Stare decisis principles require rejection of petitioner’s argument that the Court should overturn Kendall, Finn, Soriano, and related cases. Any anomaly such old cases and Irwin together create is not critical, but simply reflects a different judicial assumption about the comparative weight Congress would likely have attached to competing national interests. Moreover, the earlier cases do not produce “unworkable” law, see, e.g., United States v. International Business Machines Corp., 517 U. S. 843, 856. Stare decisis in respect to statutory interpretation also has “special force.” Congress, which “remains free to alter what [the Court has] done,” Patterson v. McLean Credit Union, 491 U. S. 164, 172–173, has long acquiesced in the interpretation given here. Finally, even if the Government cannot show detrimental reliance on the earlier cases, reexamination of well-settled precedent could nevertheless prove harmful. Overturning a decision on the belief that it is no longer “right” would inevitably reflect a willingness to reconsider others, and such willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. Pp. 8–9. 457 F. 3d 1345, affirmed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Ginsburg, J., filed a dissenting opinion.
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The question presented is whether a court must raise on its own the timeliness of a lawsuit filed in the Court of Federal Claims, despite the Government’s waiver of the issue. We hold that the special statute of limitations governing the Court of Federal Claims requires that sU. S.onte consideration. I Petitioner John R. Sand & Gravel Company filed an action in the Court of Federal Claims in May 2002. The complaint explained that petitioner held a 50-year mining lease on certain land. And it asserted that various Environmental Protection Agency activities on that land (involving, e.g., the building and moving of various fences) amounted to an unconstitutional taking of its leasehold rights. The Government initially asserted that petitioner’s several claims were all untimely in light of the statute providing that “[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U. S. C. §2501. Later, however, the Government effectively conceded that certain claims were timely. See App. 37a–39a (Government’s pretrial brief). The Government subsequently won on the merits. See 62 Fed. Cl. 556, 589 (2004). Petitioner appealed the adverse judgment to the Court of Appeals for the Federal Circuit. See 457 F. 3d 1345, 1346 (2006). The Government’s brief said nothing about the statute of limitations, but an amicus brief called the issue to the court’s attention. See id., at 1352. The court considered itself obliged to address the limitations issue, and it held that the action was untimely. Id., at 1353–1360. We subsequently agreed to consider whether the Court of Appeals was right to ignore the Government’s waiver and to decide the timeliness question. 550 U. S. ___ (2007). II Most statutes of limitations seek primarily to protect defendants against stale or unduly delayed claims. See, e.g., United States v. Kubrick, 444 U. S. 111, 117 (1979). Thus, the law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject to rules of forfeiture and waiver. See Fed. Rules Civ. Proc. 8(c)(1), 12(b), 15(a); Day v. McDonough, 547 U. S. 198, 202 (2006); Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982). Such statutes also typically permit courts to toll the limitations period in light of special equitable considerations. See, e.g., Rotella v. Wood, 528 U. S. 549, 560–561 (2000); Zipes, supra, at 393; see also Cada v. Baxter Healthcare Corp., 920 F. 2d 446, 450–453 (CA7 1990). Some statutes of limitations, however, seek not so much to protect a defendant's case-specific interest in timeliness as to achieve a broader system-related goal, such as facilitating the administration of claims, see, e.g., United States v. Brockamp, 519 U. S. 347, 352–353 (1997), limiting the scope of a governmental waiver of sovereign immunity, see, e.g., United States v. Dalm, 494 U. S. 596, 609–610 (1990), or promoting judicial efficiency, see, e.g., Bowles v. Russell, 551 U. S. ___ , ___–___ (2007) (slip op., at 7–8). The Court has often read the time limits of these statutes as more absolute, say as requiring a court to decide a timeliness question despite a waiver, or as forbidding a court to consider whether certain equitable considerations warrant extending a limitations period. See, e.g., ibid.; see also Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). As convenient shorthand, the Court has sometimes referred to the time limits in such statutes as “jurisdictional.” See, e.g., Bowles, supra, at ___ (slip op., at 5). This Court has long interpreted the court of claims limitations statute as setting forth this second, more absolute, kind of limitations period. A In Kendall v. United States, 107 U. S. 123 (1883), the Court applied a predecessor of the current 6-year bar to a claim that had first accrued in 1865 but that the plaintiff did not bring until 1872. Id., at 124; see also Act of Mar. 3, 1863, §10, 12 Stat. 767 (Rev. Stat. §1069). The plaintiff, a former Confederate States employee, had asked for equitable tolling on the ground that he had not been able to bring the suit until Congress, in 1868, lifted a previously imposed legal disability. See 107 U. S., at 124–125. But the Court denied the request. Id., at 125–126. It did so not because it thought the equities ran against the plaintiff, but because the statute (with certain listed exceptions) did not permit tolling. Justice Harlan, writing for the Court, said the statute was “jurisdiction[al],” that it was not susceptible to judicial “engraft[ing]” of unlisted disabilities such as “sickness, surprise, or inevitable accident,” and that “it [was] the duty of the court to raise the [timeliness] question whether it [was] done by plea or not.” Ibid. (emphasis added). Four years later, in Finn v. United States, 123 U. S. 227 (1887), the Court found untimely a claim that had originally been filed with a Government agency, but which that agency had then voluntarily referred by statute to the Court of Claims. Id., at 229–230 (citing Act of June 25, 1868, §7, 15 Stat. 76–77); see also Rev. Stat. §§1063–1065. That Government reference, it might have been argued, amounted to a waiver by the Government of any limitations-based defense. Cf. United States v. Lippitt, 100 U. S. 663, 669 (1880) (reserving the question of the time bar’s application in such circumstances). The Court nonetheless held that the long (over 10-year) delay between the time the claim accrued and the plaintiff’s filing of the claim before the agency made the suit untimely. Finn, 123 U. S., at 232. And as to any argument of Government waiver or abandonment of the time-bar defense, Justice Harlan, again writing for the Court, said that the ordinary legal principle that “limitation … is a defence [that a defendant] must plead … has no application to suits in the Court of Claims against the United States.” Id. at 232–233 (emphasis added). Over the years, the Court has reiterated in various contexts this or similar views about the more absolute nature of the court of claims limitations statute. See Soriano v. United States, 352 U. S. 270, 273–274 (1957); United States v. Greathouse, 166 U. S. 601, 602 (1897); United States v. New York, 160 U. S. 598, 616–619 (1896); De Arnaud v. United States, 151 U. S. 483, 495–496 (1894). B The statute’s language has changed slightly since Kendall was decided in 1883, but we do not see how any changes in language make a difference here. The only arguably pertinent linguistic change took place during the 1948 recodification of Title 28. See §2501, 62 Stat. 976. Prior to 1948, the statute said that “[e]very claim … cognizable by the Court of Claims, shall be forever barred” unless filed within six years of the time it first accrues. Rev. Stat. §1069 (emphasis added); see also Act of Mar. 3, 1911, §156, 36 Stat. 1139 (reenacting the statute without any significant changes). Now, it says that “[e]very claim of which” the Court of Federal Claims “has jurisdiction shall be barred” unless filed within six years of the time it first accrues. 28 U. S. C. §2501 (emphasis added). This Court does not “presume” that the 1948 revision “worked a change in the underlying substantive law ‘unless an intent to make such a change is clearly expressed.’ ” Keene Corp. v. United States, 508 U. S. 200, 209 (1993) (quoting Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227 (1957) (alterations omitted)); see also No. 308, 80th Cong., 1st Sess., pp. 1–8 (1947) (hereinafter Rep. No. 308) (revision sought to codify, not substantively modify, existing law); Barron, The Judicial Code: 1948 Revision, 8 F. R. D. 439 (1948) (same). We can find no such expression of intent here. The two linguistic forms (“cognizable by”; “has jurisdiction”) mean about the same thing. See Black’s Law Dictionary 991 (4th ed. 1951) (defining “jurisdiction” as “the authority by which courts and judicial officers take cognizance of and decide cases” (emphasis added)); see also Black’s Law Dictionary 1038 (3d ed. 1933) (similarly using the term “cognizance” to define “jurisdiction”). Nor have we found any suggestion in the Reviser’s Notes or anywhere else that Congress intended to change the prior meaning. See Rep. No. 308, at A192 (Reviser’s Note); Barron, supra, at 446 (Reviser’s Notes specify where change was intended). Thus, it is not surprising that nearly a decade after the revision, the Court, citing Kendall, again repeated that the statute’s limitations period was “jurisdiction[al]” and not susceptible to equitable tolling. See Soriano, supra, at 273–274, 277. III In consequence, petitioner can succeed only by convincing us that this Court has overturned, or that it should now overturn, its earlier precedent. A We cannot agree with petitioner that the Court already has overturned the earlier precedent. It is true, as petitioner points out, that in Irwin v. Department of Veterans Affairs, 498 U. S. 89 (1990), we adopted “a more general rule” to replace our prior ad hoc approach for determining whether a Government-related statute of limitations is subject to equitable tolling—namely, “that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id., at 95–96. It is also true that Irwin, using that presumption, found equitable tolling applicable to a statute of limitations governing employment discrimination claims against the Government. See id., at 96; see also 42 U. S. C. §2000e–16(c) (1988 ed.). And the Court noted that this civil rights statute was linguistically similar to the court of claims statute at issue here. See Irwin, supra, at 94–95. But these few swallows cannot make petitioner’s summer. That is because Irwin dealt with a different limitations statute. That statute, while similar to the present statute in language, is unlike the present statute in the key respect that the Court had not previously provided a definitive interpretation. Moreover, the Court, while mentioning a case that reflects the particular interpretive history of the court of claims statute, namely Soriano, 352 U. S. 270, says nothing at all about overturning that or any other case in that line. See 498 U. S., at 94–95. Courts do not normally overturn a long line of earlier cases without mentioning the matter. Indeed, Irwin recognized that it was announcing a general prospective rule, see id., at 95, which does not imply revisiting past precedents. Finally, Irwin adopted a “rebuttable presumption” of equitable tolling. Ibid. (emphasis added). That presumption seeks to produce a set of statutory interpretations that will more accurately reflect Congress’ likely meaning in the mine run of instances where it enacted a Government-related statute of limitations. But the word “rebuttable” means that the presumption is not conclusive. Specific statutory language, for example, could rebut the presumption by demonstrating Congress’ intent to the contrary. And if so, a definitive earlier interpretation of the statute, finding a similar congressional intent, should offer a similarly sufficient rebuttal. Petitioner adds that in Franconia Associates v. United States, 536 U. S. 129 (2002), we explicitly considered the court of claims limitations statute, we described the statute as “unexceptional,” and we cited Irwin for the proposition “that limitations principles should generally apply to the Government in the same way that they apply to private parties.” 536 U. S., at 145 (internal quotation marks omitted). But we did all of this in the context of rejecting an argument by the Government that the court of claims statute embodies a special, earlier-than-normal, rule as to when a claim first accrues. Id., at 144–145. The quoted language thus refers only to the statute’s claims-accrual rule and adds little or nothing to petitioner’s contention that Irwin overruled our earlier cases—a contention that we have just rejected. B Petitioner’s argument must therefore come down to an invitation now to reject or to overturn Kendall, Finn, Soriano, and related cases. In support, petitioner can claim that Irwin and Franconia represent a turn in the course of the law and can argue essentially as follows: The law now requires courts, when they interpret statutes setting forth limitations periods in respect to actions against the Government, to place greater weight upon the equitable importance of treating the Government like other litigants and less weight upon the special governmental interest in protecting public funds. Cf. Irwin, supra, at 95–96. The older interpretations treated these interests differently. Those older cases have consequently become anomalous. The Government is unlikely to have relied significantly upon those earlier cases. Hence the Court should now overrule them. Basic principles of stare decisis, however, require us to reject this argument. Any anomaly the old cases and Irwin together create is not critical; at most, it reflects a different judicial assumption about the comparative weight Congress would likely have attached to competing legitimate interests. Moreover, the earlier cases lead, at worst, to different interpretations of different, but similarly worded, statutes; they do not produce “unworkable” law. See United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) (internal quotation marks omitted); California v. FERC, 495 U. S. 490, 499 (1990). Further, stare decisis in respect to statutory interpretation has “special force,” for “Congress remains free to alter what we have done.” Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989); see also Watson v. United States, ante, at 8. Additionally, Congress has long acquiesced in the interpretation we have given. See ibid.; Shepard v. United States, 544 U. S. 13, 23 (2005). Finally, even if the Government cannot show detrimental reliance on our earlier cases, our reexamination of well-settled precedent could nevertheless prove harmful. Justice Brandeis once observed that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (dissenting opinion). To overturn a decision settling one such matter simply because we might believe that decision is no longer “right” would inevitably reflect a willingness to reconsider others. And that willingness could itself threaten to substitute disruption, confusion, and uncertainty for necessary legal stability. We have not found here any factors that might overcome these considerations. IV The judgment of the Court of Appeals is affirmed. It is so ordered.
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554.US.407
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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.
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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 et al. 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 et al. 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 capi- tal 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 et al. 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 et al. 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 et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims 50, 62, 72 (1992); Brief for National Association of Social Workers et al. 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 et al. 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 et al., 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 et al. 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.
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554.US.135
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Kentucky permits “hazardous position” workers, e.g., policemen, to receive normal retirement benefits after working either 20 years or 5 years and attaining age 55 and pays “disability retirement” benefits to workers meeting specified requirements. Kentucky’s “Plan” calculates normal retirement benefits based on actual years of service. The Plan calculates disability benefits by adding to an employee’s actual years of service the number of years that the employee would have had to continue working in order to become eligible for normal retirement benefits, adding no more than the number of years the employee had previously worked. Charles Lickteig, who continued working after becoming eligible for retirement at age 55, became disabled and retired at age 61. He filed an age discrimination complaint with respondent (EEOC) after the Plan based his pension on his actual years of service without imputing any additional years. The EEOC filed suit against Kentucky and others (collectively Kentucky), arguing that the Plan failed to impute years solely because Lickteig became disabled after age 55. The District Court granted Kentucky summary judgment, holding that the EEOC could not establish age discrimination, but the Sixth Circuit ultimately reversed on the ground that the Plan violated the Age Discrimination in Employment Act of 1967 (ADEA). Held: Kentucky’s system does not discriminate against workers who become disabled after becoming eligible for retirement based on age. Pp. 4–14. (a) The ADEA forbids an employer to “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). A plaintiff claiming age-related “disparate treatment” (i.e., intentional discrimination) must prove that age “actually motivated the employer’s decision.” Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (emphasis added). In Hazen Paper, the Court found that, without evidence of intent, a dismissal based on pension status was not a dismissal “because … of age,” id., at 611–612, noting that, though pension status depended upon years of service, and years of service typically go hand in hand with age, the two concepts are “analytically distinct,” id., at 611. And the dismissal at issue there, if based purely on pension status, would not embody the evils prompting the ADEA: It was not based on a “prohibited stereotype” of older workers, did not produce any “attendant stigma” to those workers, and was not “the result of an inaccurate and denigrating generalization about age.” Id., at 612. However, the Court noted that discrimination based on pension status could violate the ADEA if pension status was a “proxy for age.” Id., at 613. Pp. 4–6. (b) Applying Hazen Paper, the circumstances here, taken together, show that the differences in treatment in this particular instance were not “actually motivated” by age. (1) Age and pension status remain “analytically distinct” concepts. (2) Here, several background circumstances eliminate the possibility that pension status serves as a “proxy for age.” Rather than an individual employment decision, at issue here are complex systemwide rules involving not wages, but pensions—a benefit the ADEA treats somewhat more flexibly and leniently in respect to age. Further, Congress has otherwise approved programs, such as Social Security Disability Insurance, that calculate disability benefits using a formula that expressly takes account of age. (3) The disparity here has a clear non-age-related rationale. The Plan’s disability rules track Kentucky’s “normal retirement” rules by imputing only those additional years of service needed to bring the disabled worker’s total to 20 or to the number of years that the individual would have worked had he worked to age 55. Thus, the disability rules’ purpose is to treat a disabled worker as though he had become disabled after, rather than before, he had become eligible for “normal retirement” benefits. Age factors into the disability calculation only because the normal retirement rules themselves permissibly consider age. The Plan simply seeks to treat disabled employees as if they had worked until the point at which they would be eligible for a normal pension. Thus, the disparity turns upon pension eligibility and nothing more. (4) Although the Plan placed an older worker at a disadvantage here, in other cases, the rules can work to the advantage of older workers, who may get a bigger boost of imputed years than younger workers. (5) Kentucky’s system does not rely on the sorts of stereotypical assumptions, e.g., the work capacity of “older” workers relative to “younger” workers, that the ADEA sought to eradicate. The Plan’s “assumptions” that no disabled worker would have continued to work beyond the point at which he was both disabled and pension eligible do not involve age-related stereotypes, but apply equally to all workers regardless of age. (6) The nature of the Plan’s eligibility requirements means that, unless Kentucky were severely to cut the benefits to disabled workers who are not yet pension eligible, it would have to increase the benefits available to disabled, pension-eligible workers, while lacking any clear criteria for determining how many extra years to impute for those already 55 or older. The difficulty of finding a remedy that can both correct the disparity and achieve the Plan’s legitimate objective—providing each disabled worker with a sufficient retirement benefit—further suggests that this objective, not age, “actually motivated” the Plan. The Court’s opinion in no way unsettles the rule that a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA. The Court is dealing with the quite special case of differential treatment based on pension status, where pension status—with the explicit blessing of the ADEA—itself turns, in part, on age. Further, the rule for dealing with this sort of case is clear: Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was “actually motivated” by age, not pension status. Pp. 6–11. (c) The Federal Government’s additional arguments are rejected. Since Hazen Paper provides the relevant precedent here, an ADEA amendment made in light of Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158, is beside the point. And a contrary interpretation contained in an EEOC regulation and its compliance manual does not lead to a different conclusion. Pp. 11–13. 467 F. 3d 571, reversed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Souter, and Thomas, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Scalia, Ginsburg, and Alito, JJ., joined.
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The Commonwealth of Kentucky permits policemen, firemen, and other “hazardous position” workers to retire and to receive “normal retirement” benefits after either (1) working for 20 years; or (2) working for 5 years and attaining the age of 55. See Ky. Rev. Stat. Ann. §§16.576, 16.577(2) (Lexis 2003), 61.592(4) (Lexis Supp. 2003). It permits those who become seriously disabled but have not otherwise become eligible for retirement to retire immediately and receive “disability retirement” benefits. See §16.582(2)(b) (Lexis 2003). And it treats some of those disabled individuals more generously than it treats some of those who became disabled only after becoming eligible for retirement on the basis of age. The question before us is whether Kentucky’s system consequently discriminates against the latter workers “because of … age.” Age Discrimination in Employment Act of 1967 (ADEA or Act), §4(a)(1), 81 Stat. 603, 29 U. S. C. §623(a)(1). We conclude that it does not. I A Kentucky has put in place a special retirement plan (Plan) for state and county employees who occupy “[h]azardous position[s],” e.g., active duty law enforcement officers, firefighters, paramedics, and workers in correctional systems. See Ky. Rev. Stat. Ann. §61.592(1)(a) (Lexis Supp. 2003). The Plan sets forth two routes through which such an employee can become eligible for what is called “normal retirement” benefits. The first makes an employee eligible for retirement after 20 years of service. The second makes an employee eligible after only 5 years of service provided that the employee has attained the age of 55. See §§16.576, 16.577(2), 61.592(4). An employee eligible under either route will receive a pension calculated in the same way: Kentucky multiplies years of service times 2.5% times final preretirement pay. See §16.576(3). Kentucky’s Plan has special provisions for hazardous position workers who become disabled but are not yet eligible for normal retirement. Where such an employee has worked for five years or became disabled in the line of duty, the employee can retire at once. See §§16.576(1), 16.582(2) (Lexis 2003). In calculating that employee’s benefits Kentucky will add a certain number of (“imputed”) years to the employee’s actual years of service. The number of imputed years equals the number of years that the disabled employee would have had to continue working in order to become eligible for normal retirement benefits, i.e., the years necessary to bring the employee up to 20 years of service or to at least 5 years of service when the employee would turn 55 (whichever number of years is lower). See §16.582(5)(a) (Lexis 2003). Thus, if an employee with 17 years of service becomes disabled at age 48, the Plan adds 3 years and calculates the benefits as if the employee had completed 20 years of service. If an employee with 17 years of service becomes disabled at age 54, the Plan adds 1 year and calculates the benefits as if the employee had retired at age 55 with 18 years of service. The Plan also imposes a ceiling on imputed years equal to the number of years the employee has previously worked (i.e., an employee who has worked eight years cannot receive more than eight additional imputed years), see §16.582(5)(a); it provides for a certain minimum payment, see §16.582(6) (Lexis 2003); and it contains various other details, none of which is challenged here. B Charles Lickteig, a hazardous position worker in the Jefferson County Sheriff’s Department, became eligible for retirement at age 55, continued to work, became disabled, and then retired at age 61. The Plan calculated his annual pension on the basis of his actual years of service (18 years) times 2.5% times his final annual pay. Be- cause Lickteig became disabled after he had already become eligible for normal retirement benefits, the Plan did not impute any additional years for purposes of the calculation. Lickteig complained of age discrimination to the Equal Employment Opportunity Commission (EEOC); and the EEOC then brought this age discrimination lawsuit against the Commonwealth of Kentucky, Kentucky’s Plan administrator, and other state entities (to whom we shall refer collectively as “Kentucky”). The EEOC pointed out that, if Lickteig had become disabled before he reached the age of 55, the Plan, in calculating Lickteig’s benefits would have imputed a number of additional years. And the EEOC argued that the Plan failed to impute years solely because Lickteig became disabled after he reached age 55. The District Court, making all appropriate evidence-related assumptions in the EEOC’s favor, see Fed. Rule Civ. Proc. 56, held that the EEOC could not establish age discrimination; and it granted summary judgment in the defendants’ favor. A panel of the Sixth Circuit affirmed that judgment. EEOC v. Jefferson Cty. Sheriff’s Dept., 424 F. 3d 467 (2005). The Sixth Circuit then granted rehearing en banc, held that Kentucky’s Plan did violate the ADEA, and reversed and remanded for further proceedings. 467 F. 3d 571 (2006). Kentucky sought certiorari. In light of the potentially serious impact of the Circuit’s decision upon pension benefits provided under plans in effect in many States, we granted the writ. See, e.g., Ind. Code §§36–8–8–3.3(b) and (c) (West 2004); Mich. Comp. Laws Ann. §§38.23 and 38.556(2)(d) (West 2005); N. C. Gen. Stat. Ann. §§135–1 and 135–5 (Lexis 2007); Pa. Stat. Ann., Tit. 7, §§5102 and 5704 (Purdon Supp. 2007), Tenn. Code Ann. §8–36–501(c)(3) (Supp. 2007). See also Reply Brief for Petitioners 20–21 (predicting, inter alia, large increase in pension liabilities, potential reduction in benefits for all disabled persons, or both); Brief for National Association of State Retirement Administrators et al. as Amici Curiae 8–14 (same). II The ADEA forbids 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). In Hazen Paper Co. v. Biggins, 507 U. S. 604 (1993), the Court explained that where, as here, a plaintiff claims age-related “disparate treatment” (i.e., intentional discrimination “because of … age”) the plaintiff must prove that age “actually motivated the employer’s decision.” Id., at 610 (emphasis added); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 141 (2000). The Court noted that “[t]he employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment” because of age, or “the employer may have been motivated by [age] on an ad hoc, informal basis.” Hazen Paper, 507 U. S., at 610. But “[w]hatever the employer’s decisionmaking process,” a plaintiff alleging disparate treatment cannot succeed unless the employee’s age “actually played a role in that process and had a determinative influence on the outcome.” Ibid. (emphasis added). Cf. Smith v. City of Jackson, 544 U. S. 228, 239–240 (2005) (plurality opinion) (describing “disparate-impact” theory, not here at issue, which focuses upon unjustified discriminatory results). In Hazen Paper the Court considered a disparate treatment claim that an employer had unlawfully dismissed a 62-year-old employee with over 912 years of service in order to avoid paying pension benefits that would have vested after 10 years. The Court held that, without more evidence of intent, the ADEA would not forbid dismissal of the claim. A dismissal based on pension status was not a dismissal “because . . . of age.” 507 U. S., at 611–612. Of course, pension status depended upon years of service, and years of service typically go hand in hand with age. Id., at 611. But the two concepts were nonetheless “analytically distinct.” Ibid. An employer could easily “take account of one while ignoring the other.” Ibid. And the dismissal in question, if based purely upon pension status (related to years of service), would not embody the evils that led Congress to enact the ADEA in the first place: The dismissal was not based on a “prohibited stereotype” of older workers, did not produce any “attendant stigma” to those workers, and was not “the result of an inaccurate and denigrating generalization about age.” Id., at 612. At the same time, Hazen Paper indicated that discrimination on the basis of pension status could sometimes be unlawful under the ADEA, in particular where pension status served as a “proxy for age.” Id., at 613. Suppose, for example, an employer “target[ed] employees with a particular pension status on the assumption that these employees are likely to be older.” Id., at 612–613. In such a case, Hazen Paper suggested, age, not pension status, would have “actually motivated” the employer’s decisionmaking. Hazen Paper also left open “the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service.” Id., at 613. We here consider a variation on this “special case” theme. III Kentucky’s Plan turns normal pension eligibility either upon the employee’s having attained 20 years of service alone or upon the employees having attained 5 years of service and reached the age of 55. The ADEA permits an employer to condition pension eligibility upon age. See 29 U. S. C. A. §623(l)(1)(A)(i) (Supp. 2007). Thus we must decide whether a plan that (1) lawfully makes age in part a condition of pension eligibility, and (2) treats workers differently in light of their pension status, (3) automatically discriminates because of age. The Government argues “yes.” But, following Hazen Paper’s approach, we come to a different conclusion. In particular, the following circumstances, taken together, convince us that, in this particular instance, differences in treatment were not “actually motivated” by age. First, as a matter of pure logic, age and pension status remain “analytically distinct” concepts. Hazen Paper, 507 U. S., at 611. That is to say, one can easily conceive of decisions that are actually made “because of” pension status and not age, even where pension status is itself based on age. Suppose, for example that an employer pays all retired workers a pension, retirement eligibility turns on age, say 65, and a 70-year-old worker retires. Nothing in language or in logic prevents one from concluding that the employer has begun to pay the worker a pension, not because the worker is over 65, but simply because the worker has retired. Second, several background circumstances eliminate the possibility that pension status, though analytically distinct from age, nonetheless serves as a “proxy for age” in Kentucky’s Plan. Cf. id., at 613. We consider not an individual employment decision, but a set of complex systemwide rules. These systemic rules involve, not wages, but pensions—a benefit that the ADEA treats somewhat more flexibly and leniently in respect to age. See, e.g., 29 U. S. C. A. §623(l)(1)(A)(i) (Supp. 2007) (explicitly allowing pension eligibility to turn on age); 29 U. S. C. §623(l)(2)(A) (allowing employer to consider (age-related) pension benefits in determining level of severance pay); §623(l)(3) (allowing employer to consider (age-related) pension benefits in determining level of long-term disability benefits). And the specific benefit at issue here is offered to all hazardous position workers on the same nondiscriminatory terms ex ante. That is to say, every such employee, when hired, is promised disability retirement benefits should he become disabled prior to the time that he is eligible for normal retirement benefits. Furthermore, Congress has otherwise approved of programs that calculate permanent disability benefits using a formula that expressly takes account of age. For example, the Social Security Administration now uses such a formula in calculating Social Security Disability Insurance benefits. See, e.g., 42 U. S. C. §415(b)(2)(B)(iii); 20 CFR §404.211(e) (2007). And until (and in some cases after) 1984, federal employees received permanent disability benefits based on a formula that, in certain circumstances, did not just consider age, but effectively imputed years of service only to those disabled workers younger than 60. See 5 U. S. C. §8339(g) (2006 ed.); see also Office of Personnel Management, Disability Retirement Under the Civil Service Retirement System, Retirement Facts 4, p. 3 (rev. Nov. 1997), on line at http://www.opm.gov/forms/ pdfimage/RI83-4.pdf (as visited June 16, 2008, and available in Clerk of Court’s case file). Third, there is a clear non-age-related rationale for the disparity here at issue. The manner in which Kentucky calculates disability retirement benefits is in every important respect but one identical to the manner in which Kentucky calculates normal retirement benefits. The one significant difference consists of the fact that the Plan imputes additional years of service to disabled individuals. But the Plan imputes only those years needed to bring the disabled worker’s years of service to 20 or to the number of years that the individual would have worked had he worked to age 55. The disability rules clearly track Kentucky’s normal retirement rules. It is obvious, then, that the whole purpose of the disability rules is, as Kentucky claims, to treat a disabled worker as though he had become disabled after, rather than before, he had become eligible for normal retirement benefits. Age factors into the disability calculation only because the normal retirement rules themselves permissibly include age as a consideration. No one seeking to help disabled workers in the way that Kentucky’s rules seek to help those workers would care whether Kentucky’s normal system turned eligibility in part upon age or upon other, different criteria. That this is so is suggested by the fact that one can readily construct a plan that produces an identical disparity but is age neutral. Suppose that Kentucky’s Plan made eligible for a pension (a) day-shift workers who have 20 years of service, and (b) night-shift workers who have 15 years of service. Suppose further that the Plan calculates the amount of the pension the same way in either case, which method of calculation depends solely upon years of service (say, giving the worker a pension equal to $1,000 for each year of service). If the Plan were then to provide workers who become disabled prior to pension eligibility the same pension the workers would have received had they worked until they became pension eligible, the plan would create a disparity between disabled day-shift and night-shift workers: A day-shift worker who becomes disabled before becoming pension eligible would, in many instances, end up receiving a bigger pension than a night-shift worker who becomes disabled after becoming pension eligible. For example, a day-shift worker who becomes disabled prior to becoming pension-eligible would receive an annual pension of $20,000, while a night-shift worker who becomes disabled after becoming pension-eligible, say, after 16 years of service, would receive an annual pension of $16,000. The disparity in this example is not “actually motivated” by bias against night-shift workers. Rather, such a disparity, like the disparity in the case before us, is simply an artifact of Plan rules that treat one set of workers more generously in respect to the timing of their eligibility for normal retirement benefits but which do not treat them more generously in respect to the calculation of the amount of their normal retirement benefits. The example helps to show that the Plan at issue in this case simply seeks to treat disabled employees as if they had worked until the point at which they would be eligible for a normal pension. The disparity turns upon pension eligibility and nothing more. Fourth, although Kentucky’s Plan placed an older worker at a disadvantage in this case, in other cases, it can work to the advantage of older workers. Consider, for example, two disabled workers, one of whom is aged 45 with 10 years of service, one of whom is aged 40 with 15 years of service. Under Kentucky’s scheme, the older worker would actually get a bigger boost of imputed years than the younger worker (10 years would be imputed to the former, while only 5 years would be imputed to the latter). And that fact helps to confirm that the underlying motive is not an effort to discriminate “because of … age.” Fifth, Kentucky’s system does not rely on any of the sorts of stereotypical assumptions that the ADEA sought to eradicate. It does not rest on any stereotype about the work capacity of “older” workers relative to “younger” workers. See, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 590 (2004) (noting that except on one point, all the findings and statements of objectives in the ADEA are “either cast in terms of the effects of age as intensifying over time, or are couched in terms that refer to ‘older’ workers, explicitly or implicitly relative to ‘younger’ ones” (emphasis added)). The Plan does assume that all disabled workers would have worked to the point at which they would have become eligible for a pension. It also assumes that no disabled worker would have continued working beyond the point at which he was both (1) disabled; and (2) pension eligible. But these “assumptions” do not involve age-related stereotypes, and they apply equally to all workers, regardless of age. Sixth, the nature of the Plan’s eligibility requirements means that, unless Kentucky were severely to cut the benefits given to disabled workers who are not yet pension eligible (which Kentucky claims it will do if its present Plan is unlawful), Kentucky would have to increase the benefits available to disabled, pension-eligible workers, while lacking any clear criteria for determining how many extra years to impute for those pension-eligible workers who already are 55 or older. The difficulty of finding a remedy that can both correct the disparity and achieve the Plan’s legitimate objective—providing each disabled worker with a sufficient retirement benefit, namely, the normal retirement benefit that the worker would receive if he were pension eligible at the time of disability—further suggests that this objective and not age “actually motivated” the Plan. The above factors all taken together convince us that the Plan does not, on its face, create treatment differences that are “actually motivated” by age. And, for present purposes, we accept the District Court’s finding that the Government has pointed to no additional evidence that might permit a factfinder to reach a contrary conclusion. See App. 28–30. It bears emphasizing that our opinion in no way unsettles the rule that a statute or policy that facially discriminates based on age suffices to show disparate treatment under the ADEA. We are dealing today with the quite special case of differential treatment based on pension status, where pension status—with the explicit blessing of the ADEA—itself turns, in part, on age. Further, the rule we adopt today for dealing with this sort of case is clear: Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was “actually motivated” by age, not pension status. And our discussion of the factors that lead us to conclude that the Government has failed to make the requisite showing in this case provides an indication of what a plaintiff might show in other cases to meet his burden of proving that differential treatment based on pension status is in fact discrimination “because of” age. IV The Government makes two additional arguments. First, it looks for support to an amendment that Congress made to the ADEA after this Court’s decision in Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158 (1989). In Betts, the employer denied a worker disability benefits on the ground that its bona fide benefit program provided disability benefits only to workers who became disabled prior to age 60, and the worker in that case became disabled at age 61. Id., at 163. The ADEA at that time exempted from its prohibitions employment decisions taken pursuant to the terms of “ ‘any bona fide employee benefit plan . . . which is not a subterfuge to evade the purposes of’ the Act.” Id., at 161 (quoting 29 U. S. C. §623(f)(2) (1982 ed., Supp. V)). And the Court held that the employer’s decision fell within that exception. 492 U. S., at 182. Subsequently Congress amended the ADEA to make clear that it covered age-based discrimination in respect to all employee benefits. See Older Workers Benefit Protection Act, §102, 104 Stat. 978, 29 U. S. C. §630(l) (2000 ed.). Congress replaced the “not a subterfuge” exception with a provision stating that age-based disparities in the provision of benefits are lawful only when they are justified in respect to cost savings. Id., at 978–979; 29 U. S. C. §623(f)(2)(B)(i). We agree with the Government that the amendment broadened the field of employer actions subject to antidiscrimination rules and it narrowed the statutorily available justifications for age-related differences. But these facts cannot help the Government here. We do not dispute that ADEA prohibitions apply to the Plan at issue, and our basis for finding the Plan lawful does not rest upon amendment-related justifications. Rather, we find that the discrimination is not “actually motivated” by age. Thus Hazen Paper, not Betts, provides relevant precedent. And the amendment cited by the Government is beside the point. Second, the Government says that we must defer to a contrary EEOC interpretation contained in an EEOC regulation and compliance manual. The regulation, however, says only that providing “the same level of benefits to older workers as to younger workers” does not violate the Act. 29 CFR §1625.10(a)(2) (2007). The Government’s interpretation of this language is not entitled to deference because, on its face, the regulation “does little more than restate the terms of the statute itself.” Gonzales v. Oregon, 546 U. S. 243, 257 (2006) (denying deference to an agency interpretation of its own regulation in light of the “near equivalence” of the statute and regulation). The Compliance Manual provides more explicitly that benefits are not “equal” insofar as a plan “reduces or eliminates benefits based on a criterion that is explicitly defined (in whole or in part) by age.” 2 EEOC Compliance Manual §3, p. 627:00041 (2001) (bold typeface deleted). And the Compliance Manual further provides that “[b]asing disability retirement benefits on the number of years a disabled employee would have worked until normal retirement age by definition gives more constructive years of service to younger than to older employees” and thus violates the Act. See id., at 627:0010. These statements, while important, cannot lead us to a different conclusion. See National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 111, n. 6 (2002) (noting that compliance manuals are “ ‘ “entitled to respect” under our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)’ ”); see also Christensen v. Harris County, 529 U. S. 576, 587 (2000). Following Hazen Paper, we interpret the Act as requiring a showing that the discrimination at issue “actually motivated” the employer’s decision. Given the reasons set forth in Part III, supra, we conclude that evidence of that motivation was lacking here. And the EEOC’s statement in the Compliance Manual that it automatically reaches a contrary conclusion—a statement that the Manual itself makes little effort to justify—lacks the necessary “power to persuade” us. Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). V The judgment of the Court of Appeals is reversed. It is so ordered.
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552.US.85
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Under the statute criminalizing the manufacture and distribution of cocaine, 21 U. S. C. §841, and the relevant Federal Sentencing Guidelines, a drug trafficker dealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. Petitioner Kimbrough pleaded guilty to four offenses: conspiracy to distribute crack and powder; possession with intent to distribute more than 50 grams of crack; possession with intent to distribute powder; and possession of a firearm in furtherance of a drug-trafficking offense. Under the relevant statutes, Kimbrough’s plea subjected him to a minimum prison term of 15 years and a maximum of life. The applicable advisory Guidelines range was 228 to 270 months, or 19 to 22.5 years. The District Court found, however, that a sentence in this range would have been greater than necessary to accomplish the purposes of sentencing set forth in 18 U. S. C. §3553(a). In making that determination, the court relied in part on its view that Kimbrough’s case exemplified the “disproportionate and unjust effect that crack cocaine guidelines have in sentencing.” The court noted that if Kimbrough had possessed only powder cocaine, his Guidelines range would have been far lower: 97 to 106 months. Concluding that the statutory minimum sentence was long enough to accomplish §3553(a)’s objectives, the court sentenced Kimbrough to 15 years, or 180 months, in prison. The Fourth Circuit vacated the sentence, finding that a sentence outside the Guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder offenses. Held: 1. Under United States v. Booker, 543 U. S. 220, the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing, §3553(a). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder offenses. Pp. 5–21. (a) Crack and powder cocaine have the same physiological and psychotropic effects, but are handled very differently for sentencing purposes. The relevant statutes and Guidelines employ a 100-to-1 ratio that yields sentences for crack offenses three to six times longer than those for offenses involving equal amounts of powder. Thus, a major supplier of powder may receive a shorter sentence than a low-level dealer who buys powder and converts it to crack. Pp. 5–11. (1) The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986 (1986 Act), which created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress apparently adopted the 100-to-1 ratio because it believed that crack, a relatively new drug in 1986, was significantly more dangerous than powder. Thus, the 1986 Act’s five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, and its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder. In developing Guidelines sentences for cocaine offenses, the Sentencing Commission employed the statute’s weight-driven scheme, rather than its usual empirical approach based on past sentencing practices. The statute itself specifies only two quantities of each drug, but the Guidelines used the 100-to-1 ratio to set sentences for a full range of drug quantities. Pp. 6–8. (2) Based on additional research and experience with the 100-to-1 ratio, the Commission later determined that the crack/powder differential does not meet the objectives of the Sentencing Reform Act and the 1986 Act. The Commission also found the disparity inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers, and furthermore observed that the differential fosters a lack of confidence in the criminal justice system because of a perception that it promotes an unwarranted divergence based on race. Pp. 8–10. (3) The Commission has several times sought to achieve a reduction in the crack/powder ratio. Congress rejected a 1995 amendment to the Guidelines that would have replaced the 100-to-1 ratio with a 1-to-1 ratio, but directed the Commission to propose revision of the ratio under the relevant statutes and Guidelines. Congress took no action after the Commission’s 1997 and 2002 reports recommended changing the ratio. The Commission’s 2007 report again urged Congress to amend the 1986 Act, but the Commission also adopted an ameliorating change in the Guidelines. The modest amendment, which became effective on November 1, 2007, yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. The Commission thus noted that it is only a partial remedy to the problems generated by the crack/powder disparity. Pp. 10–11. (b) The federal sentencing statute, as modified by Booker, requires a court to give respectful consideration to the Guidelines, but “permits the court to tailor the sentence in light of other [§3553(a)] concerns as well,” 543 U. S., at 245–246. The Government contends that the Guidelines adopting the 100-to-1 ratio are an exception to this general freedom and offers three arguments in support of its position, each of which this Court rejects. Pp. 11–21. (1) The Government argues that the 1986 Act itself prohibits the Commission and sentencing courts from disagreeing with the 100-to-1 ratio. This position lacks grounding in the statute, which, by its terms, mandates only maximum and minimum sentences: A person convicted of possession with intent to distribute 5 grams or more of crack must be sentenced to a minimum of 5 years and a maximum of 40. A person with 50 grams or more of crack must be sentenced to a minimum of 10 years and a maximum of life. The statute says nothing about appropriate sentences within these brackets, and this Court declines to read any implicit directive into the congressional silence. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341. Drawing meaning from silence is particularly inappropriate here, because Congress knows how to direct sentencing practices in express terms. See, e.g., 28 U. S. C. §994(h). This cautious reading of the 1986 Act draws force from Neal v. United States, 516 U. S. 284, which involved different methods of calculating lysergic acid diethylamide (LSD) weights: The method applicable in determining statutory minimum sentences combined the weight of the pure drug and its carrier medium, while the one controlling the calculation of Guidelines ranges presumed a lower weight for the carrier medium. This Court rejected the argument that the Guidelines and the statute should be interpreted consistently, with the Guidelines’ presumptive-weight method controlling the mandatory minimum calculation. Were the Government’s current position correct, the Guidelines involved in Neal would be in serious jeopardy. The same reasons alleged to justify reading into the 1986 Act an implicit command to the Commission and sentencing courts to apply the 100-to-1 ratio to all crack quantities could be urged in support of an argument that the 1986 Act requires the Commission to include the full weight of the carrier medium in calculating LSD weights. Yet Neal never questioned the Guidelines’ validity, and in fact endorsed the Commission’s freedom to adopt a new method. If the 1986 Act does not require the Commission to adhere to the Act’s method for determining LSD weights, it does not require the Commission—or, after Booker, sentencing courts—to adhere to the 100-to-1 ratio for crack quantities other than those triggering the statutory mandatory minimum sentences. Pp. 13–16. (2) The Government also argues that Congress made clear, in disapproving the Commission’s 1995 proposed Guidelines amendment, that the 1986 Act required the Commission and courts to respect the 100-to-1 ratio. But nothing in Congress’ 1995 action suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress required the Commission to recommend a revision of the ratio. The Government argues that, by calling for recommendations to change both the statute and the Guidelines, Congress meant to bar any Guidelines alteration in advance of congressional action. But the more likely reading is that Congress sought proposals to amend both the statute and the Guidelines because the Commission’s criticisms of the 100-to-1 ratio concerned the exorbitance of the crack/powder disparity in both contexts. Moreover, as a result of the 2007 amendment, which Congress did not disapprove or modify, the Guidelines now deviate from the statute’s 100-to-1 ratio, advancing a ratio that varies (at different offense levels) between 25 to 1 and 80 to 1. Pp. 16–18. (3) Finally, the Government argues that if district courts are free to deviate from the Guidelines based on disagreements with the crack/powder ratio, “unwarranted sentence disparities,” 18 U. S. C. §3553(a)(6), will ensue. The Government claims that, because sentencing courts remain bound by the 1986 Act’s mandatory minimum sentences, deviations from the 100-to-1 ratio could result in sentencing “cliffs” around quantities triggering the mandatory minimums. For example, a district court could grant a sizable downward variance to a defendant convicted of distributing 49 grams of crack, but would be required by the statutory minimum to impose a much higher sentence for only 1 additional gram. The LSD Guidelines approved in Neal, however, create a similar risk of sentencing “cliffs.” The Government also maintains that, if district courts are permitted to vary from the Guidelines based on their disagreement with the crack/powder disparity, defendants will receive markedly different sentences depending on the particular judge drawn for sentencing. While uniformity remains an important sentencing goal, Booker recognized that some departures from uniformity were a necessary cost of the remedy that decision adopted. And as to crack sentences in particular, possible variations among district courts are constrained by the 1986 Act’s mandatory minimums. Moreover, to the extent that the Government correctly identifies risks of “unwarranted sentence disparities” within the meaning of §3353(a)(6), the proper solution is for district courts to take account of sentencing practices in other courts and the “cliffs” resulting from the statutory mandatory minimum sentences and weigh these disparities against the other §3553(a) factors and any unwarranted disparities created by the crack/powder ratio itself. Pp. 18–20. (c) Booker rendered the Sentencing Guidelines advisory, 543 U. S., at 245, but preserved a key role for the Sentencing Commission. In the ordinary case, the Commission’s recommendation of a sentencing range will “reflect a rough approximation of sentences that might achieve §3553(a)’s objectives.” Rita v. United States, 551 U. S. ___, ___ (slip op., at 11). The sentencing judge, on the other hand, is “in a superior position to find facts and judge their import under §3553(a) in each particular case.” Gall v. United States, ante, at 13 (internal quotation marks omitted). In light of these discrete institutional strengths, a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case “outside the ‘heartland’ to which the Commission intends individual Guidelines to apply.” Rita, 551 U. S., at ___ (slip op., at 12). On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range “fails properly to reflect §3553(a) considerations” even in a mine-run case. Ibid. The crack cocaine Guidelines, however, present no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission’s exercise of its characteristic institutional role. Given the Commission’s departure from its empirical approach in formulating the crack Guidelines and its subsequent criticism of the crack/powder disparity, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve §3553(a)’s purposes, even in a mine-run case. Pp. 20–21. 2. The 180-month sentence imposed on Kimbrough should survive appellate inspection. The District Court began by properly calculating and considering the advisory Guidelines range. It then addressed the relevant §3553(a) factors, including the Sentencing Commission’s reports criticizing the 100-to-1 ratio. Finally, the court did not purport to establish a ratio of its own, but appropriately framed its final determination in line with §3553(a)’s overarching instruction to “impose a sentence sufficient, but not greater than necessary” to accomplish the sentencing goals advanced in §3553(a)(2). The court thus rested its sentence on the appropriate considerations and “committed no procedural error,” Gall, ante, at 17. Kimbrough’s sentence was 4.5 years below the bottom of the Guidelines range. But in determining that 15 years was the appropriate prison term, the District Court properly homed in on the particular circumstances of Kimbrough’s case and accorded weight to the Sentencing Commission’s consistent and emphatic position that the crack/powder disparity is at odds with §3553(a). Giving due respect to the District Court’s reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion. Pp. 21–23. 174 Fed. Appx. 798, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Scalia, J., filed a concurring opinion. Thomas, J., and Alito, J., filed dissenting opinions.
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This Court’s remedial opinion in United States v. Booker, 543 U. S. 220, 244 (2005), instructed district courts to read the United States Sentencing Guidelines as “effectively advisory,” id., at 245. In accord with 18 U. S. C. §3553(a), the Guidelines, formerly mandatory, now serve as one factor among several courts must consider in determining an appropriate sentence. Booker further instructed that “reasonableness” is the standard controlling appellate review of the sentences district courts impose. Under the statute criminalizing the manufacture and distribution of crack cocaine, 21 U. S. C. §841, and the relevant Guidelines prescription, §2D1.1, a drug trafficker dealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. The question here presented is whether, as the Court of Appeals held in this case, “a sentence … outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.” 174 Fed. Appx. 798, 799 (CA4 2006) (per curiam). We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sentence is “greater than necessary” to serve the objectives of sentencing. 18 U. S. C. §3553(a) (2000 ed. and Supp. V). In making that determination, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses. I In September 2004, petitioner Derrick Kimbrough was indicted in the United States District Court for the Eastern District of Virginia and charged with four offenses: conspiracy to distribute crack and powder cocaine; possession with intent to distribute more than 50 grams of crack cocaine; possession with intent to distribute powder cocaine; and possession of a firearm in furtherance of a drug-trafficking offense. Kimbrough pleaded guilty to all four charges. Under the relevant statutes, Kimbrough’s plea subjected him to an aggregate sentence of 15 years to life in prison: 10 years to life for the three drug offenses, plus a consecutive term of 5 years to life for the firearm offense.[Footnote 1] In order to determine the appropriate sentence within this statutory range, the District Court first calculated Kimbrough’s sentence under the advisory Sentencing Guidelines.[Footnote 2] Kimbrough’s guilty plea acknowledged that he was accountable for 56 grams of crack cocaine and 92.1 grams of powder cocaine. This quantity of drugs yielded a base offense level of 32 for the three drug charges. See United States Sentencing Commission, Guidelines Manual §2D1.1(c) (Nov. 2004) (USSG). Finding that Kimbrough, by asserting sole culpability for the crime, had testified falsely at his codefendant’s trial, the District Court increased his offense level to 34. See §3C1.1. In accord with the presentence report, the court determined that Kimbrough’s criminal history category was II. An offense level of 34 and a criminal history category of II yielded a Guidelines range of 168 to 210 months for the three drug charges. See id., ch. 5, pt. A, Sentencing Table. The Guidelines sentence for the firearm offense was the statutory minimum, 60 months. See USSG §2K2.4(b). Kimbrough’s final advisory Guidelines range was thus 228 to 270 months, or 19 to 22.5 years. A sentence in this range, in the District Court’s judgment, would have been “greater than necessary” to accomplish the purposes of sentencing set forth in 18 U. S. C. §3553(a). App. 72. As required by §3553(a), the court took into account the “nature and circumstances” of the offense and Kimbrough’s “history and characteristics.” Id., at 72–73. The court also commented that the case exemplified the “disproportionate and unjust effect that crack cocaine guidelines have in sentencing.” Id., at 72. In this regard, the court contrasted Kimbrough’s Guidelines range of 228 to 270 months with the range that would have applied had he been accountable for an equivalent amount of powder cocaine: 97 to 106 months, inclusive of the 5-year mandatory minimum for the firearm charge, see USSG §2D1.1(c); id., ch. 5, pt. A, Sentencing Table. Concluding that the statutory minimum sentence was “clearly long enough” to accomplish the objectives listed in §3553(a), the court sentenced Kimbrough to 15 years, or 180 months, in prison plus 5 years of supervised release. App. 74–75.[Footnote 3] In an unpublished per curiam opinion, the Fourth Circuit vacated the sentence. Under Circuit precedent, the Court of Appeals observed, a sentence “outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses.” 174 Fed. Appx., at 799 (citing United States v. Eura, 440 F. 3d 625, 633–634 (CA4 2006)). We granted certiorari, 551 U. S. ___ (2007), to determine whether the crack/powder disparity adopted in the United States Sentencing Guidelines has been rendered “advisory” by our decision in Booker.[Footnote 4] II We begin with some background on the different treatment of crack and powder cocaine under the federal sentencing laws. Crack and powder cocaine are two forms of the same drug. Powder cocaine, or cocaine hydrochloride, is generally inhaled through the nose; it may also be mixed with water and injected. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 5, 12 (Feb. 1995), available at http://www.ussc.gov/crack/exec.htm (hereinafter 1995 Report). (All Internet materials as visited Dec. 7, 2007, and included in Clerk of Court’s case file.) Crack cocaine, a type of cocaine base, is formed by dissolving powder cocaine and baking soda in boiling water. Id., at 14. The resulting solid is divided into single-dose “rocks” that users smoke. Ibid. The active ingredient in powder and crack cocaine is the same. Id., at 9. The two forms of the drug also have the same physiological and psychotropic effects, but smoking crack cocaine allows the body to absorb the drug much faster than inhaling powder cocaine, and thus produces a shorter, more intense high. Id., at 15–19.[Footnote 5] Although chemically similar, crack and powder cocaine are handled very differently for sentencing purposes. The 100&nbhyph;to&nbhyph;1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs. See United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy iv (May 2002), available at http://www.ussc.gov/r_congress/02crack/ 2002crackrpt.pdf (hereinafter 2002 Report).[Footnote 6] This disparity means that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack. See 1995 Report 193–194. A The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986 (1986 Act), 100 Stat. 3207. The 1986 Act created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress sought “to link the ten-year mandatory minimum trafficking prison term to major drug dealers and to link the five-year minimum term to serious traffickers.” 1995 Report 119. The 1986 Act uses the weight of the drugs involved in the offense as the sole proxy to identify “major” and “serious” dealers. For example, any defendant responsible for 100 grams of heroin is subject to the five-year mandatory minimum, see 21 U. S. C. §841(b)(1)(B)(i) (2000 ed. and Supp V), and any defendant responsible for 1,000 grams of heroin is subject to the ten-year mandatory minimum, see §841(b)(1)(A)(i). Crack cocaine was a relatively new drug when the 1986 Act was signed into law, but it was already a matter of great public concern: “Drug abuse in general, and crack cocaine in particular, had become in public opinion and in members’ minds a problem of overwhelming dimensions.” 1995 Report 121. Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack’s potency and low cost were making it increasingly popular. See 2002 Report 90. Based on these assumptions, the 1986 Act adopted a “100&nbhyph;to&nbhyph;1 ratio” that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The Act’s five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, 21 U. S. C. §841(b)(1)(B)(ii), (iii); its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder, §841(b)(1)(A)(ii), (iii). While Congress was considering adoption of the 1986 Act, the Sentencing Commission was engaged in formulating the Sentencing Guidelines.[Footnote 7] In the main, the Commission developed Guidelines sentences using an empirical approach based on data about past sentencing practices, including 10,000 presentence investigation reports. See USSG §1A.1, intro. comment., pt. A, ¶3. The Commission “modif[ied] and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like.” Rita v. United States, 551 U. S. ___, ___ (2007) (slip op., at 10). The Commission did not use this empirical approach in developing the Guidelines sentences for drug-trafficking offenses. Instead, it employed the 1986 Act’s weight-driven scheme. The Guidelines use a drug quantity table based on drug type and weight to set base offense levels for drug trafficking offenses. See USSG §2D1.1(c). In setting offense levels for crack and powder cocaine, the Commission, in line with the 1986 Act, adopted the 100&nbhyph;to&nbhyph;1 ratio. The statute itself specifies only two quantities of each drug, but the Guidelines “go further and set sentences for the full range of possible drug quantities using the same 100&nbhyph;to&nbhyph;1 quantity ratio.” 1995 Report 1. The Guidelines’ drug quantity table sets base offense levels ranging from 12, for offenses involving less than 250 milligrams of crack (or 25 grams of powder), to 38, for offenses involving more than 1.5 kilograms of crack (or 150 kilograms of powder). USSG §2D1.1(c).[Footnote 8] B Although the Commission immediately used the 100&nbhyph;to&nbhyph;1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. Based on additional research and experience with the 100&nbhyph;to&nbhyph;1 ratio, the Commission concluded that the disparity “fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act.” 2002 Report 91. In a series of reports, the Commission identified three problems with the crack/powder disparity. First, the Commission reported, the 100&nbhyph;to&nbhyph;1 ratio rested on assumptions about “the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.” Ibid.; see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/ cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far “overstate[s]” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking-related violence … than previously assumed.” 2002 Report 100. It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” Id., at 94. The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.” Id., at 96. Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. See 1995 Report 66–67. But the 100&nbhyph;to&nbhyph;1 ratio can lead to the “anomalous” result that “retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced.” Id., at 174. Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100&nbhyph;to&nbhyph;1 ratio are imposed “primarily upon black offenders.” Ibid. Despite these observations, the Commission’s most recent reports do not urge identical treatment of crack and powder cocaine. In the Commission’s view, “some differential in the quantity-based penalties” for the two drugs is warranted, id., at 102, because crack is more addictive than powder, crack offenses are more likely to involve weapons or bodily injury, and crack distribution is associated with higher levels of crime, see id., at 93–94, 101–102. But the 100&nbhyph;to&nbhyph;1 crack/powder ratio, the Commission concluded, significantly overstates the differences between the two forms of the drug. Accordingly, the Commission recommended that the ratio be “substantially” reduced. Id., at viii. C The Commission has several times sought to achieve a reduction in the crack/powder ratio. In 1995, it proposed amendments to the Guidelines that would have replaced the 100&nbhyph;to&nbhyph;1 ratio with a 1&nbhyph;to&nbhyph;1 ratio. Complementing that change, the Commission would have installed special enhancements for trafficking offenses involving weapons or bodily injury. See Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25075–25077 (1995). Congress, acting pursuant to 28 U. S. C. §994(p),[Footnote 9] rejected the amendments. See Pub. L. 104–38, §1, 109 Stat. 334. Simultaneously, however, Congress directed the Commission to “propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines.” §2(a)(2), id., at 335. In response to this directive, the Commission issued reports in 1997 and 2002 recommending that Congress change the 100&nbhyph;to&nbhyph;1 ratio prescribed in the 1986 Act. The 1997 Report proposed a 5&nbhyph;to&nbhyph;1 ratio. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 2 (Apr. 1997), http://www.ussc.gov/r_congress/newcrack.pdf. The 2002 Report recommended lowering the ratio “at least” to 20 to 1. 2002 Report viii. Neither proposal prompted congressional action. The Commission’s most recent report, issued in 2007, again urged Congress to amend the 1986 Act to reduce the 100&nbhyph;to&nbhyph;1 ratio. This time, however, the Commission did not simply await congressional action. Instead, the Commission adopted an ameliorating change in the Guidelines. See 2007 Report 9. The alteration, which became effective on November 1, 2007, reduces the base offense level associated with each quantity of crack by two levels. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571–28572 (2007).[Footnote 10] This modest amendment yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. See ibid.[Footnote 11] Describing the amendment as “only … a partial remedy” for the problems generated by the crack/powder disparity, the Commission noted that “[a]ny comprehensive solution requires appropriate legislative action by Congress.” 2007 Report 10. III With this history of the crack/powder sentencing ratio in mind, we next consider the status of the Guidelines tied to the ratio after our decision in United States v. Booker, 543 U. S. 220 (2005). In Booker, the Court held that the mandatory Sentencing Guidelines system violated the Sixth Amendment. See id., at 226–227. The Booker remedial opinion determined that the appropriate cure was to sever and excise the provision of the statute that rendered the Guidelines mandatory, 18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV).[Footnote 12] This modification of the federal sentencing statute, we explained, “makes the Guidelines effectively advisory.” 543 U. S., at 245. The statute, as modified by Booker, contains an overarching provision instructing district courts to “impose a sentence sufficient, but not greater than necessary” to accomplish the goals of sentencing, including “to reflect the seriousness of the offense,” “to promote respect for the law,” “to provide just punishment for the offense,” “to afford adequate deterrence to criminal conduct,” and “to protect the public from further crimes of the defendant.” 18 U. S. C. §3553(a) (2000 ed. and Supp. V). The statute further provides that, in determining the appropriate sentence, the court should consider a number of factors, including “the nature and circumstances of the offense,” “the history and characteristics of the defendant,” “the sentencing range established” by the Guidelines, “any pertinent policy statement” issued by the Sentencing Commission pursuant to its statutory authority, and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Ibid. In sum, while the statute still requires a court to give respectful consideration to the Guidelines, see Gall v. United States, ante, at 7, 11, Booker “permits the court to tailor the sentence in light of other statutory concerns as well,” 543 U. S., at 245–246. The Government acknowledges that the Guidelines “are now advisory” and that, as a general matter, “courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines.” Brief for United States 16; cf. Rita v. United States, 551 U. S. ___, ___ (2007) (slip op., at 12) (a district court may consider arguments that “the Guidelines sentence itself fails properly to reflect §3553(a) considerations”). But the Government contends that the Guidelines adopting the 100&nbhyph;to&nbhyph;1 ratio are an exception to the “general freedom that sentencing courts have to apply the [§3553(a)] factors.” Brief for United States 16. That is so, according to the Government, because the ratio is a “specific policy determinatio[n] that Congress has directed sentencing courts to observe.” Id., at 25. The Government offers three arguments in support of this position. We consider each in turn. A As its first and most heavily pressed argument, the Government urges that the 1986 Act itself prohibits the Sentencing Commission and sentencing courts from disagreeing with the 100&nbhyph;to&nbhyph;1 ratio.[Footnote 13] The Government acknowledges that the “Congress did not expressly direct the Sentencing Commission to incorporate the 100:1 ratio in the Guidelines.” Brief for United States 33 (brackets and internal quotation marks omitted). Nevertheless, it asserts that the Act “[i]mplicit[ly]” requires the Commission and sentencing courts to apply the 100&nbhyph;to&nbhyph;1 ratio. Id., at 32. Any deviation, the Government urges, would be “logically incoherent” when combined with mandatory minimum sentences based on the 100&nbhyph;to&nbhyph;1 ratio. Id., at 33. This argument encounters a formidable obstacle: It lacks grounding in the text of the 1986 Act. The statute, by its terms, mandates only maximum and minimum sentences: A person convicted of possession with intent to distribute 5 grams or more of crack cocaine must be sentenced to a minimum of 5 years and the maximum term is 40 years. A person with 50 grams or more of crack cocaine must be sentenced to a minimum of 10 years and the maximum term is life. The statute says nothing about the appropriate sentences within these brackets, and we decline to read any implicit directive into that congressional silence. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply … .”). Drawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms. For example, Congress has specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders “at or near” the statutory maximum. 28 U. S. C. §994(h). See also §994(i) (“The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment” for specified categories of offenders.). Our cautious reading of the 1986 Act draws force from Neal v. United States, 516 U. S. 284 (1996). That case involved different methods of calculating lysergic acid diethylamide (LSD) weights, one applicable in determining statutory minimum sentences, the other controlling the calculation of Guidelines ranges. The 1986 Act sets mandatory minimum sentences based on the weight of “a mixture or substance containing a detectable amount” of LSD. 21 U. S. C. §841(b)(1)(A)(v), (B)(v). Prior to Neal, we had interpreted that language to include the weight of the carrier medium (usually blotter paper) on which LSD is absorbed even though the carrier is usually far heavier than the LSD itself. See Chapman v. United States, 500 U. S. 453, 468 (1991). Until 1993, the Sentencing Commission had interpreted the relevant Guidelines in the same way. That year, however, the Commission changed its approach and “instructed courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams.” Neal, 516 U. S., at 287 (citing USSG §2D1.1(c), n. (H) (Nov. 1995)). The Commission’s change significantly lowered the Guidelines range applicable to most LSD offenses, but defendants remained subject to higher statutory minimum sentences based on the combined weight of the pure drug and its carrier medium. The defendant in Neal argued that the revised Guidelines and the statute should be interpreted consistently and that the “presumptive-weight method of the Guidelines should also control the mandatory minimum calculation.” 516 U. S., at 287. We rejected that argument, emphasizing that the Commission had not purported to interpret the statute and could not in any event overrule our decision in Chapman. See 516 U. S., at 293–295. If the Government’s current position were correct, then the Guidelines involved in Neal would be in serious jeopardy. We have just recounted the reasons alleged to justify reading into the 1986 Act an implicit command to the Commission and sentencing courts to apply the 100&nbhyph;to&nbhyph;1 ratio to all quantities of crack cocaine. Those same reasons could be urged in support of an argument that the 1986 Act requires the Commission to include the full weight of the carrier medium in calculating the weight of LSD for Guidelines purposes. Yet our opinion in Neal never questioned the validity of the altered Guidelines. To the contrary, we stated: “Entrusted within its sphere to make policy judgments, the Commission may abandon its old methods in favor of what it has deemed a more desirable ‘approach’ to calculating LSD quantities.” Id., at 295.[Footnote 14] If the 1986 Act does not require the Commission to adhere to the Act’s method for determining LSD weights, it does not require the Commission—or, after Booker, sentencing courts—to adhere to the 100&nbhyph;to&nbhyph;1 ratio for crack cocaine quantities other than those that trigger the statutory mandatory minimum sentences. B In addition to the 1986 Act, the Government relies on Congress’ disapproval of the Guidelines amendment that the Sentencing Commission proposed in 1995. Congress “not only disapproved of the 1:1 ratio,” the Government urges; it also made clear “that the 1986 Act required the Commission (and sentencing courts) to take drug quantities into account, and to do so in a manner that respects the 100:1 ratio.” Brief for United States 35. It is true that Congress rejected the Commission’s 1995 proposal to place a 1&nbhyph;to&nbhyph;1 ratio in the Guidelines, and that Congress also expressed the view that “the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine.” Pub. L. 104–38, §2(a)(1)(A), 109 Stat. 334. But nothing in Congress’ 1995 reaction to the Commission-proposed 1&nbhyph;to&nbhyph;1 ratio suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress’ 1995 action required the Commission to recommend a “revision of the drug quantity ratio of crack cocaine to powder cocaine.” §2(a)(2), id., at 335. The Government emphasizes that Congress required the Commission to propose changes to the 100&nbhyph;to&nbhyph;1 ratio in both the 1986 Act and the Guidelines. This requirement, the Government contends, implicitly foreclosed any deviation from the 100&nbhyph;to&nbhyph;1 ratio in the Guidelines (or by sentencing courts) in the absence of a corresponding change in the statute. See Brief for United States 35–36. But it does not follow as the night follows the day that, by calling for recommendations to change the statute, Congress meant to bar any Guidelines alteration in advance of congressional action. The more likely reading is that Congress sought proposals to amend both the statute and the Guidelines because the Commission’s criticisms of the 100&nbhyph;to&nbhyph;1 ratio, see Part II–B, supra, concerned the exorbitance of the crack/powder disparity in both contexts. Moreover, as a result of the 2007 amendment, see supra, at 10–11, the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571–28572. Adopting the Government’s analysis, the amended Guidelines would conflict with Congress’ 1995 action, and with the 1986 Act, because the current Guidelines ratios deviate from the 100&nbhyph;to&nbhyph;1 statutory ratio. Congress, however, did not disapprove or modify the Commission-initiated 2007 amendment. Ordinarily, we resist reading congressional intent into congressional inaction. See Bob Jones Univ. v. United States, 461 U. S. 574, 600 (1983). But in this case, Congress failed to act on a proposed amendment to the Guidelines in a high-profile area in which it had previously exercised its disapproval authority under 28 U. S. C. §994(p). If nothing else, this tacit acceptance of the 2007 amendment undermines the Government’s position, which is itself based on implications drawn from congressional silence. C Finally, the Government argues that if district courts are free to deviate from the Guidelines based on disagreements with the crack/powder ratio, unwarranted disparities of two kinds will ensue. See 18 U. S. C. §3553(a)(6) (sentencing courts shall consider “the need to avoid unwarranted sentence disparities”). First, because sentencing courts remain bound by the mandatory minimum sentences prescribed in the 1986 Act, deviations from the 100&nbhyph;to&nbhyph;1 ratio could result in sentencing “cliffs” around quantities that trigger the mandatory minimums. Brief for United States 33 (internal quotation marks omitted). For example, a district court could grant a sizable downward variance to a defendant convicted of distributing 49 grams of crack but would be required by the statutory minimum to impose a much higher sentence on a defendant responsible for only 1 additional gram. Second, the Government maintains that, if district courts are permitted to vary from the Guidelines based on their disagreement with the crack/powder disparity, “defendants with identical real conduct will receive markedly different sentences, depending on nothing more than the particular judge drawn for sentencing.” Id., at 40. Neither of these arguments persuades us to hold the crack/powder ratio untouchable by sentencing courts. As to the first, the LSD Guidelines we approved in Neal create a similar risk of sentencing “cliffs.” An offender who possesses LSD on a carrier medium weighing ten grams is subject to the ten-year mandatory minimum, see 21 U. S. C. §841(b)(1)(A)(v), but an offender whose carrier medium weighs slightly less may receive a considerably lower sentence based on the Guidelines’ presumptive-weight methodology. Concerning the second disparity, it is unquestioned that uniformity remains an important goal of sentencing. As we explained in Booker, however, advisory Guidelines combined with appellate review for reasonableness and ongoing revision of the Guidelines in response to sentencing practices will help to “avoid excessive sentencing disparities.” 543 U. S., at 264. These measures will not eliminate variations between district courts, but our opinion in Booker recognized that some departures from uniformity were a necessary cost of the remedy we adopted. See id., at 263 (“We cannot and do not claim that use of a ‘reasonableness’ standard will provide the uniformity that Congress originally sought to secure [through mandatory Guidelines].”). And as to crack cocaine sentences in particular, we note a congressional control on disparities: possible variations among district courts are constrained by the mandatory minimums Congress prescribed in the 1986 Act.[Footnote 15] Moreover, to the extent that the Government correctly identifies risks of “unwarranted sentence disparities” within the meaning of 18 U. S. C. §3353(a)(6), the proper solution is not to treat the crack/powder ratio as mandatory. Section 3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities—along with other §3553(a) factors—when imposing sentences. See Gall, ante, at 11, n. 6, 16. Under this instruction, district courts must take account of sentencing practices in other courts and the “cliffs” resulting from the statutory mandatory minimum sentences. To reach an appropriate sentence, these disparities must be weighed against the other §3553(a) factors and any unwarranted disparity created by the crack/powder ratio itself. IV While rendering the Sentencing Guidelines advisory, United States v. Booker, 543 U. S. 220, 245 (2005), we have nevertheless preserved a key role for the Sentencing Commission. As explained in Rita and Gall, district courts must treat the Guidelines as the “starting point and the initial benchmark,” Gall v. United States, ante, at 11. Congress established the Commission to formulate and constantly refine national sentencing standards. See Rita v. United States, 551 U. S. ___, ___–___ (2007) (slip op., at 9–11). Carrying out its charge, the Commission fills an important institutional role: It has the capacity courts lack to “base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.” United States v. Pruitt, 502 F. 3d 1154, 1171 (CA10 2007) (McConnell, J., concurring); see supra, at 7. We have accordingly recognized that, in the ordinary case, the Commission’s recommendation of a sentencing range will “reflect a rough approximation of sentences that might achieve §3553(a)’s objectives.” Rita, 551 U. S., at ___ (slip op., at 11). The sentencing judge, on the other hand, has “greater familiarity with … the individual case and the individual defendant before him than the Commission or the appeals court.” Id., at ___ (slip op., at 18). He is therefore “in a superior position to find facts and judge their import under §3353(a)” in each particular case. Gall, ante, at 13 (internal quotation marks omitted). In light of these discrete institutional strengths, a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case “outside the ‘heartland’ to which the Commission intends individual Guidelines to apply.” Rita, 551 U. S., at ___ (slip op., at 12). On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range “fails properly to reflect §3553(a) considerations” even in a mine-run case. Ibid. Cf. Tr. of Oral Arg. in Gall v. United States, O. T. 2007, No. 06-7949, pp. 38–39. The crack cocaine Guidelines, however, present no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission’s exercise of its characteristic institutional role. In formulating Guidelines ranges for crack cocaine offenses, as we earlier noted, the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of “empirical data and national experience.” See Pruitt, 502 F. 3d, at 1171 (McConnell, J., concurring). Indeed, the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses “greater than necessary” in light of the purposes of sentencing set forth in §3553(a). See supra, at 8–9. Given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary” to achieve §3553(a)’s purposes, even in a mine-run case. V Taking account of the foregoing discussion in appraising the District Court’s disposition in this case, we conclude that the 180-month sentence imposed on Kimbrough should survive appellate inspection. The District Court began by properly calculating and considering the advisory Guidelines range. It then addressed the relevant §3553(a) factors. First, the court considered “the nature and circumstances” of the crime, see 18 U. S. C. §3553(a)(1), which was an unremarkable drug-trafficking offense. App. 72–73 (“[T]his defendant and another defendant were caught sitting in a car with some crack cocaine and powder by two police officers—that’s the sum and substance of it—[and they also had] a firearm.”). Second, the court considered Kimbrough’s “history and characteristics.” §3553(a)(1). The court noted that Kimbrough had no prior felony convictions, that he had served in combat during Operation Desert Storm and received an honorable discharge from the Marine Corps, and that he had a steady history of employment. Furthermore, the court alluded to the Sentencing Commission’s reports criticizing the 100&nbhyph;to&nbhyph;1 ratio, cf. §3553(a)(5) (Supp. V), noting that the Commission “recognizes that crack cocaine has not caused the damage that the Justice Department alleges it has.” App. 72. Comparing the Guidelines range to the range that would have applied if Kimbrough had possessed an equal amount of powder, the court suggested that the 100&nbhyph;to&nbhyph;1 ratio itself created an unwarranted disparity within the meaning of §3553(a). Finally, the court did not purport to establish a ratio of its own. Rather, it appropriately framed its final determination in line with §3553(a)’s overarching instruction to “impose a sentence sufficient, but not greater than necessary” to accomplish the sentencing goals advanced in §3553(a)(2). See supra, at 12. Concluding that “the crack cocaine guidelines [drove] the offense level to a point higher than is necessary to do justice in this case,” App. 72, the District Court thus rested its sentence on the appropriate considerations and “committed no procedural error,” Gall v. United States, ante, at 17. The ultimate question in Kimbrough’s case is “whether the sentence was reasonable—i.e., whether the District Judge abused his discretion in determining that the §3553(a) factors supported a sentence of [15 years] and justified a substantial deviation from the Guidelines range.” Ibid. The sentence the District Court imposed on Kimbrough was 4.5 years below the bottom of the Guidelines range. But in determining that 15 years was the appropriate prison term, the District Court properly homed in on the particular circumstances of Kimbrough’s case and accorded weight to the Sentencing Commission’s consistent and emphatic position that the crack/powder disparity is at odds with §3553(a). See Part II–B, supra. Indeed, aside from its claim that the 100&nbhyph;to&nbhyph;1 ratio is mandatory, the Government did not attack the District Court’s downward variance as unsupported by §3553(a). Giving due respect to the District Court’s reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion. See Gall, ante, at 20–21; Rita v. United States, 551 U. S. ___, ___ (2007) (slip op., at 19–20). * * * For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The statutory range for possession with intent to distribute more than 50 grams of crack is ten years to life. See 21 U. S. C. §841(b)(1)(A)(iii) (2000 ed. and Supp. V). The same range applies to the conspiracy offense. See §846 (2000 ed.). The statutory range for possession with intent to distribute powder cocaine is 0 to 20 years. See §841(b)(1)(C) (Supp. V). Finally, the statutory range for possession of a firearm in furtherance of a drug-trafficking offense is five years to life. See 18 U. S. C. §924(c)(1)(A)(i). The sentences for the three drug crimes may run concurrently, see §3584(a), but the sentence for the firearm offense must be consecutive, see §924(c)(1)(A). Footnote 2 Kimbrough was sentenced in April 2005, three months after our decision in Booker v. United States, 543 U. S. 220 (2005), rendered the Guidelines advisory. The District Court employed the version of the Guidelines effective November 1, 2004. Footnote 3 The prison sentence consisted of 120 months on each of the three drug counts, to be served concurrently, plus 60 months on the firearm count, to be served consecutively. Footnote 4 This question has divided the Courts of Appeals. Compare United States v. Pickett, 475 F. 3d 1347, 1355–1356 (CADC 2007) (District Court erred when it concluded that it had no discretion to consider the crack/powder disparity in imposing a sentence), and United States v. Gunter, 462 F. 3d 237, 248–249 (CA3 2006) (same), with United States v. Leatch, 482 F. 3d 790, 791 (CA5 2007) (per curiam) (sentencing court may not impose a sentence outside the Guidelines range based on its disagreement with the crack/powder disparity), United States v. Johnson, 474 F. 3d 515, 522 (CA8 2007) (same), United States v. Castillo, 460 F. 3d 337, 361 (CA2 2006) (same), United States v. Williams, 456 F. 3d 1353, 1369 (CA11 2006) (same), United States v. Miller, 450 F. 3d 270, 275–276 (CA7 2006) (same), United States v. Eura, 440 F. 3d 625, 633–634 (CA4 2006) (same), and United States v. Pho, 433 F. 3d 53, 62–63 (CA1 2006) (same). Footnote 5 Injecting powder cocaine produces effects similar to smoking crack cocaine, but very few powder users inject the drug. See 1995 Report 18. Footnote 6 As explained in Part II–C, infra, the Sentencing Commission amended the Guidelines and reduced sentences for crack offenses effective November 1, 2007. Except as noted, this opinion refers to the 2004 Guidelines in effect at the time of Kimbrough’s sentencing. Footnote 7 Congress created the Sentencing Commission and charged it with promulgating the Guidelines in the Sentencing Reform Act of 1984, 98 Stat. 1987, 18 U. S. C. §3551 et seq. (2000 ed. and Supp. V), but the first version of the Guidelines did not become operative until November 1987, see 1995 Report ii–iv. Footnote 8 An offense level of 12 results in a Guidelines range of 10 to 16 months for a first-time offender; an offense level of 38 results in a range of 235 to 293 months for the same offender. See USSG ch. 5, pt. A, Sentencing Table. Footnote 9 Subsection 994(p) requires the Commission to submit Guidelines amendments to Congress and provides that such amendments become effective unless “modified or disapproved by Act of Congress.” Footnote 10 The amended Guidelines still produce sentencing ranges keyed to the mandatory minimums in the 1986 Act. Under the pre-2007 Guidelines, the 5- and 50-gram quantities that trigger the statutory minimums produced sentencing ranges that slightly exceeded those statutory minimums. Under the amended Guidelines, in contrast, the 5- and 50-gram quantities produce “base offense levels corresponding to guideline ranges that include the statutory mandatory minimum penalties.” 2007 Report 9. Footnote 11 The Commission has not yet determined whether the amendment will be retroactive to cover defendants like Kimbrough. Even under the amendment, however, Kimbrough’s Guidelines range would be 195 to 218 months—well above the 180-month sentence imposed by the District Court. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571–28572 (2007); USSG ch. 5, pt. A, Sentencing Table. Footnote 12 The remedial opinion also severed and excised the provision of the statute requiring de novo review of departures from the Guidelines, 18 U. S. C. §3742(e), because that provision depended on the Guidelines’ mandatory status. Booker, 543 U. S., at 245. Footnote 13 The Government concedes that a district court may vary from the 100&nbhyph;to&nbhyph;1 ratio if it does so “based on the individualized circumstance[s]” of a particular case. Brief for United States 45. But the Government maintains that the 100&nbhyph;to&nbhyph;1 ratio is binding in the sense that a court may not give any weight to its own view that the ratio itself is inconsistent with the §3553(a) factors. Footnote 14 At oral argument, the Government sought to distinguish Neal v. United States, 516 U. S. 284 (1996), on the ground that the validity of the amended Guidelines was not before us in that case. See Tr. of Oral Arg. 25. That is true, but only because the Government did not challenge the amendment. In fact, the Government’s brief appeared to acknowledge that the Commission may legitimately deviate from the policies and methods embodied in the 1986 Act, even if the deviation produces some inconsistency. See Brief for United States in Neal v. United States, O. T. 1995, No. 94–9088, p. 26 (“When the Commission’s views about sentencing policy depart from those of Congress, it may become difficult to achieve entirely consistent sentencing, but that is a matter for Congress, not the courts, to address.”). Moreover, our opinion in Neal assumed that the amendment was a legitimate exercise of the Commission’s authority. See 516 U. S., at 294 (noting with apparent approval the Commission’s position that “the Guidelines calculation is independent of the statutory calculation”). Footnote 15 The Sentencing Commission reports that roughly 70% of crack offenders are responsible for drug quantities that yield base offense levels at or only two levels above those that correspond to the statutory minimums. See 2007 Report 25.
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552.US.181
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Individuals may subtract from their federal taxable income certain itemized deductions, 26 U. S. C. §63(d), but only to the extent the deductions exceed 2% of adjusted gross income, §67(a). A trust may also take such deductions subject to the 2% floor, §67(e), except that when the relevant cost is “paid or incurred in connection with the administration of the … trust” and “would not have been incurred if the property were not held in such trust,” the cost may be deducted without regard to the floor, §67(e)(1). After petitioner Knight (Trustee), the trustee of a testamentary trust (Trust), hired the Warfield firm to advise as to Trust investments, the Trust deducted in full on its fiduciary income tax return the investment advisory fees paid to Warfield. Respondent Commissioner found the fees subject to the 2% floor and therefore allowed the deduction only to the extent the fees exceeded 2% of the Trust’s adjusted gross income. The Tax Court decided for the Commissioner, and the Second Circuit affirmed, holding that because such fees were costs of a type that could be incurred if the property were held individually rather than in trust, their deduction by the Trust was subject to the 2% floor. Held: Investment advisory fees generally are subject to the 2% floor when incurred by a trust. Pp. 5–13. (a) In asking whether a particular type of cost incurred by a trust “would not have been incurred” if the property were held by an individual, §67(e)(1) excepts from the 2% floor only those costs that it would be uncommon (or unusual, or unlikely) for such a hypothetical individual to incur. The question whether a trust-related expense is fully deductible turns on a prediction about what would happen if a fact were changed—specifically, if the property were held by an individual rather than by a trust. Predictions are based on what would customarily or commonly occur. Thus, in the context of making such a prediction, when there is uncertainty about the answer, the word “would” is best read to express concepts such as custom, habit, natural disposition, or probability. Although the statutory text does not expressly ask whether expenses are “customarily” incurred outside of trusts, that is the direct import of the language in context. The Second Circuit’s approach, which asks whether the cost at issue could have been incurred by an individual, flies in the face of the statutory language. Had Congress intended the Court of Appeals’ reading, it easily could have replaced “would” with “could” in §67(e)(1), and presumably would have. The Trustee’s argument that the proper inquiry is whether a particular expense of a particular trust was caused by the fact that the property was held in trust fails because the statute by its terms does not establish a straightforward causation test, but instead looks to the counterfactual question whether an individual would have incurred such costs in the absence of a trust. Further, under the Trustee’s approach, every trust-related expense would be fully deductible, thus allowing the exception to the 2% floor in §67(e)(1) to swallow the general rule. Pp. 5–10. (b) The Trust’s investment advisory fees are subject to the 2% floor. The Trustee—who has the burden of establishing entitlement to the deduction, see, e.g., INDOPCO, Inc. v. Commissioner, 503 U. S. 79, 84—has not demonstrated that it is uncommon or unusual for individuals to hire an investment adviser. His argument is that individuals cannot incur trust investment advisory fees, not that individuals do not commonly incur investment advisory fees. Indeed, his essential point is that he engaged an investment adviser because of his fiduciary duties under Connecticut law, which requires a trustee to invest and manage trust assets “as a prudent investor would.” This prudent investor standard plainly does not refer to a prudent trustee, but looks instead to what a prudent investor with the same investment objectives handling his own affairs would do—i.e., a prudent individual investor. Because a hypothetical prudent investor in petitioner’s position would reasonably have solicited investment advice, it is quite difficult to say that the investment advisory fees “would not have been incurred”—i.e., that it would be unusual or uncommon for such fees to have been incurred—if the property were held by an individual investor with the same objectives as the Trust in handling his own affairs. While Congress’s decision to phrase the pertinent inquiry in terms of a prediction about a hypothetical situation inevitably entails some uncertainty, that is no excuse for judicial amendment of the statute. The Code elsewhere poses similar questions, see, e.g., §§162(a), 212, and the inquiry is in any event what §67(e)(1) requires. Although some trust-related investment advisory fees may be fully deductible if an investment adviser were to impose a special, additional charge applicable only to its fiduciary accounts, there is nothing in the record to suggest that Warfield did so, or treated the Trust any differently than it would have treated an individual with similar objectives, because of the Trustee’s fiduciary obligations. Nor does the Trust assert that its investment objectives or balancing of competing interests were so distinctive that any comparison with those of an individual investor would be improper. Pp. 10–13. 467 F. 3d 149, affirmed. Roberts, C. J., delivered the opinion for a unanimous Court.
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Under the Internal Revenue Code, individuals may subtract from their taxable income certain itemized deductions, but only to the extent the deductions exceed 2% of adjusted gross income. A trust may also claim those deductions, also subject to the 2% floor, except that costs incurred in the administration of the trust, which would not have been incurred if the trust property were not held by a trust, may be deducted without regard to the floor. In the case of individuals, investment advisory fees are subject to the 2% floor; the question presented is whether such fees are also subject to the floor when incurred by a trust. We hold that they are and therefore affirm the judgment below, albeit for different reasons than those given by the Court of Appeals. I The Internal Revenue Code imposes a tax on the “taxable income” of both individuals and trusts. 26 U. S. C. §1(a). The Code instructs that the calculation of taxable income begins with a determination of “gross income,” capaciously defined as “all income from whatever source derived.” §61(a). “Adjusted gross income” is then calculated by subtracting from gross income certain “above-the-line” deductions, such as trade and business expenses and losses from the sale or exchange of property. §62(a). Finally, taxable income is calculated by subtracting from adjusted gross income “itemized deductions”—also known as “below-the-line” deductions—defined as all allowable deductions other than the “above-the-line” deductions identified in §62(a) and the deduction for personal exemptions allowed under §151 (2000 ed. and Supp. V). §63(d) (2000 ed.). Before the passage of the Tax Reform Act of 1986, 100 Stat. 2085, below-the-line deductions were deductible in full. This system resulted in significant complexity and potential for abuse, requiring “extensive [taxpayer] recordkeeping with regard to what commonly are small expenditures,” as well as “significant administrative and enforcement problems for the Internal Revenue Service.” H. R. Rep. No. 99–426, p. 109 (1985). In response, Congress enacted what is known as the “2% floor” by adding §67 to the Code. Section 67(a) provides that “the miscellaneous itemized deductions for any taxable year shall be allowed only to the extent that the aggregate of such deductions exceeds 2 percent of adjusted gross income.” The term “miscellaneous itemized deductions” is defined to include all itemized deductions other than certain ones specified in §67(b). Investment advisory fees are deductible pursuant to 26 U. S. C. §212. Because §212 is not listed in §67(b) as one of the categories of expenses that may be deducted in full, such fees are “miscellaneous itemized deductions” subject to the 2% floor. 26 CFR §1.67–1T(a)(1)(ii) (2007). Section 67(e) makes the 2% floor generally applicable not only to individuals but also to estates and trusts,[Footnote 1] with one exception relevant here. Under this exception, “the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual, except that … the deductions for costs which are paid or incurred in connection with the administration of the estate or trust and which would not have been incurred if the property were not held in such trust or estate … shall be treated as allowable” and not subject to the 2% floor. §67(e)(1). Petitioner Michael J. Knight is the trustee of the William L. Rudkin Testamentary Trust, established in the State of Connecticut in 1967. In 2000, the Trustee hired Warfield Associates, Inc., to provide advice with respect to investing the Trust’s assets. At the beginning of the tax year, the Trust held approximately $2.9 million in marketable securities, and it paid Warfield $22,241 in investment advisory fees for the year. On its fiduciary income tax return for 2000, the Trust reported total income of $624,816, and it deducted in full the investment advisory fees paid to Warfield. After conducting an audit, respondent Commissioner of Internal Revenue found that these investment advisory fees were miscellaneous itemized deductions subject to the 2% floor. The Commissioner therefore allowed the Trust to deduct the investment advisory fees, which were the only claimed deductions subject to the floor, only to the extent that they exceeded 2% of the Trust’s adjusted gross income. The discrepancy resulted in a tax deficiency of $4,448. The Trust filed a petition in the United States Tax Court seeking review of the assessed deficiency. It argued that the Trustee’s fiduciary duty to act as a “prudent investor” under the Connecticut Uniform Prudent Investor Act, Conn. Gen. Stat. §§45a–541a to 45a–541l (2007),[Footnote 2] required the Trustee to obtain investment advisory services, and therefore to pay investment advisory fees. The Trust argued that such fees are accordingly unique to trusts and therefore fully deductible under 26 U. S. C. §67(e)(1). The Tax Court rejected this argument, holding that §67(e)(1) allows full deductibility only for expenses that are not commonly incurred outside the trust setting. Because investment advisory fees are commonly incurred by individuals, the Tax Court held that they are subject to the 2% floor when incurred by a trust. Rudkin Testamentary Trust v. Commissioner, 124 T. C. 304, 309–311 (2005). The Trust appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals concluded that, in determining whether costs such as investment advisory fees are fully deductible or subject to the 2% floor, §67(e) “directs the inquiry toward the counterfactual condition of assets held individually instead of in trust,” and requires “an objective determination of whether the particular cost is one that is peculiar to trusts and one that individuals are incapable of incurring.” 467 F. 3d 149, 155, 156 (2006). The court held that because investment advisory fees were “costs of a type that could be incurred if the property were held individually rather than in trust,” deduction of such fees by the Trust was subject to the 2% floor. Id., at 155–156. The Courts of Appeals are divided on the question presented. The Sixth Circuit has held that investment advisory fees are fully deductible. O’Neill v. Commissioner, 994 F. 2d 302, 304 (1993). In contrast, both the Fourth and Federal Circuits have held that such fees are subject to the 2% floor, because they are “commonly” or “customarily” incurred outside of trusts. See Scott v. United States, 328 F. 3d 132, 140 (CA4 2003); Mellon Bank, N. A. v. United States, 265 F. 3d 1275, 1281 (CA Fed. 2001). The Court of Appeals below came to the same conclusion, but as noted announced a more exacting test, allowing “full deduction only for those costs that could not have been incurred by an individual property owner.” 467 F. 3d, at 156 (emphasis added). We granted the Trustee’s petition for certiorari to resolve the conflict, 551 U. S. __ (2007), and now affirm. II “We start, as always, with the language of the statute.” Williams v. Taylor, 529 U. S. 420, 431 (2000). Section 67(e) sets forth a general rule: “[T]he adjusted gross income of [a] … trust shall be computed in the same manner as in the case of an individual.” That is, trusts can ordinarily deduct costs subject to the same 2% floor that applies to individuals’ deductions. Section 67(e) provides for an exception to the 2% floor when two conditions are met. First, the relevant cost must be “paid or incurred in connection with the administration of the … trust.” §67(e)(1). Second, the cost must be one “which would not have been incurred if the property were not held in such trust.” Ibid. In applying the statute, the Court of Appeals below asked whether the cost at issue could have been incurred by an individual.[Footnote 3] This approach flies in the face of the statutory language. The provision at issue asks whether the costs “would not have been incurred if the property were not held” in trust, ibid., not, as the Court of Appeals would have it, whether the costs “could not have been incurred” in such a case, 467 F. 3d, at 156. The fact that an individual could not do something is one reason he would not, but not the only possible reason. If Congress had intended the Court of Appeals’ reading, it easily could have replaced “would” in the statute with “could,” and presumably would have. The fact that it did not adopt this readily available and apparent alternative strongly supports rejecting the Court of Appeals’ reading.[Footnote 4] Moreover, if the Court of Appeals’ reading were correct, it is not clear why Congress would have included in the statute the first clause of §67(e)(1). If the only costs that are fully deductible are those that could not be incurred outside the trust context—that is, that could only be incurred by trusts—then there would be no reason to place the further condition on full deductibility that the costs be “paid or incurred in connection with the administration of the … trust,” §67(e)(1). We can think of no expense that could be incurred exclusively by a trust but would nevertheless not be “paid or incurred in connection with” its administration. The Trustee argues that the exception in §67(e)(1) “establishes a straightforward causation test.” Brief for Petitioner 22. The proper inquiry, the Trustee contends, is “whether a particular expense of a particular trust or estate was caused by the fact that the property was held in the trust or estate.” Ibid. Investment advisory fees incurred by a trust, the argument goes, meet this test because these costs are caused by the trustee’s obligation “to obtain advice on investing trust assets in compliance with the Trustees’ particular fiduciary duties.” Ibid. We reject this reading as well. On the Trustee’s view, the statute operates only to distinguish costs that are incurred by virtue of a trustee’s fiduciary duties from those that are not. But all (or nearly all) of a trust’s expenses are incurred because the trustee has a duty to incur them; otherwise, there would be no reason for the trust to incur the expense in the first place. See G. Bogert & G. Bogert, Law of Trusts and Trustees §801, p. 134 (2d rev. ed. 1981) (“[T]he payment for expenses must be reasonably necessary to facilitate administration of the trust”). As an example of a type of trust-related expense that would be subject to the 2% floor, the Trustee offers “expenses for routine maintenance of real property” held by a trust. Brief for Petitioner 23. But such costs would appear to be fully deductible under the Trustee’s own reading, because a trustee is obligated to incur maintenance expenses in light of the fiduciary duty to maintain trust property. See 1 Restatement (Second) of Trusts §176, p. 381 (1957) (“The trustee is under a duty to the beneficiary to use reasonable care and skill to preserve the trust property”). Indeed, the Trustee’s formulation of its argument is circular: “Trust investment advice fees are caused by the fact the property is held in trust.” Brief for Petitioner 19. But “trust investment advice fees” are only aptly described as such because the property is held in trust; the statute asks whether such costs would be incurred by an individual if the property were not. Even when there is a clearly analogous category of costs that would be incurred by individuals, the Trustee’s reading would exempt most or all trust costs as fully deductible merely because they derive from a trustee’s fiduciary duty. Adding the modifier “trust” to costs that otherwise would be incurred by an individual surely cannot be enough to escape the 2% floor. What is more, if the Trustee’s position were correct, then only the first clause of §67(e)(1)—providing that the cost be “incurred in connection with the administration of the … trust”—would be necessary. The statute’s second, limiting condition—that the cost also be one “which would not have been incurred if the property were not held in such trust”—would do no work; we see no difference in saying, on the one hand, that costs are “caused by” the fact that the property is held in trust and, on the other, that costs are incurred “in connection with the administration” of the trust. Thus, accepting the Trustee’s approach “would render part of the statute entirely superfluous, something we are loath to do.” Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 166 (2004). The Trustee’s reading is further undermined by our inclination, “[i]n construing provisions … in which a general statement of policy is qualified by an exception, [to] read the exception narrowly in order to preserve the primary operation of the provision.” Commissioner v. Clark, 489 U. S. 726, 739 (1989). As we have said, §67(e) sets forth a general rule for purposes of the 2% floor established in §67(a): “For purposes of this section, the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual.” Under the Trustee’s reading, §67(e)(1)’s exception would swallow the general rule; most (if not all) expenses incurred by a trust would be fully deductible. “Given that Congress has enacted a general rule … , we should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception.” Ibid. More to the point, the statute by its terms does not “establis[h] a straightforward causation test,” Brief for Petitioner 22, but rather invites a hypothetical inquiry into the treatment of the property were it held outside a trust. The statute does not ask whether a cost was incurred because the property is held by a trust; it asks whether a particular cost “would not have been incurred if the property were not held in such trust,” §67(e)(1). “Far from examining the nature of the cost at issue from the perspective of whether it was caused by the trustee’s duties, the statute instead looks to the counterfactual question of whether individuals would have incurred such costs in the absence of a trust.” Brief for Respondent 9. This brings us to the test adopted by the Fourth and Federal Circuits: Costs incurred by trusts that escape the 2% floor are those that would not “commonly” or “customarily” be incurred by individuals. See Scott, 328 F. 3d, at 140 (“Put simply, trust-related administrative expenses are subject to the 2% floor if they constitute expenses commonly incurred by individual taxpayers”); Mellon Bank, 265 F. 3d, at 1281 (§67(e) “treats as fully deductible only those trust-related administrative expenses that are unique to the administration of a trust and not customarily incurred outside of trusts”). The Solicitor General also accepts this view as an alternative reading of the statute. See Brief for Respondent 20–21. We agree with this approach. The question whether a trust-related expense is fully deductible turns on a prediction about what would happen if a fact were changed—specifically, if the property were held by an individual rather than by a trust. In the context of making such a prediction, when there is uncertainty about the answer, the word “would” is best read as “express[ing] concepts such as custom, habit, natural disposition, or probability.” Scott, supra, at 139. See Webster’s Third New International Dictionary 2637–2638 (1993); American Heritage Dictionary 2042, 2059 (3d ed. 1996). The Trustee objects that the statutory text “does not ask whether expenses are ‘customarily’ incurred outside of trusts,” Reply Brief for Petitioner 15, but that is the direct import of the language in context. The text requires determining what would happen if a fact were changed; such an exercise necessarily entails a prediction; and predictions are based on what would customarily or commonly occur. Thus, in asking whether a particular type of cost “would not have been incurred” if the property were held by an individual, §67(e)(1) excepts from the 2% floor only those costs that it would be uncommon (or unusual, or unlikely) for such a hypothetical individual to incur. III Having decided on the proper reading of §67(e)(1), we come to the application of the statute to the particular question in this case: whether investment advisory fees incurred by a trust escape the 2% floor. It is not uncommon or unusual for individuals to hire an investment adviser. Certainly the Trustee, who has the burden of establishing its entitlement to the deduction, has not demonstrated that it is. See INDOPCO, Inc. v. Commissioner, 503 U. S. 79, 84 (1992) (noting the “ ‘familiar rule’ that ‘an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer’ ” (quoting Interstate Transit Lines v. Commissioner, 319 U. S. 590, 593 (1943))); Tax Court Rule 142(a)(1) (stating that the “burden of proof shall be upon the petitioner,” with certain exceptions not relevant here). The Trustee’s argument is that individuals cannot incur trust investment advisory fees, not that individuals do not commonly incur investment advisory fees. Indeed, the essential point of the Trustee’s argument is that he engaged an investment adviser because of his fiduciary duties under Connecticut’s Uniform Prudent Investor Act, Conn. Gen. Stat. §45a–541a(a) (2007). The Act eponymously requires trustees to follow the “prudent investor rule.” See n. 2, supra. To satisfy this standard, a trustee must “invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements and other circumstances of the trust.” §45a–541b(a) (emphasis added). The prudent investor standard plainly does not refer to a prudent trustee; it would not be very helpful to explain that a trustee should act as a prudent trustee would. Rather, the standard looks to what a prudent investor with the same investment objectives handling his own affairs would do—i.e., a prudent individual investor. See Restatement (Third) of Trusts (Prudent Investor Rule) Reporter’s Notes on §227, p. 58 (1990) (“The prudent investor rule of this Section has its origins in the dictum of Harvard College v. Amory, 9 Pick. (26 Mass.) 446, 461 (1830), stating that trustees must ‘observe how men of prudence, discretion, and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested’ ”). See also, e.g., In re Musser’s Estate, 341 Pa. 1, 9–10, 17 A. 2d 411, 415 (1941) (noting the “general rule” that “a trustee must exercise such prudence and diligence in conducting the affairs of the trust as men of average diligence and discretion would employ in their own affairs”). And we have no reason to doubt the Trustee’s claim that a hypothetical prudent investor in his position would have solicited investment advice, just as he did. Having accepted all this, it is quite difficult to say that investment advisory fees “would not have been incurred”—that is, that it would be unusual or uncommon for such fees to have been incurred—if the property were held by an individual investor with the same objectives as the Trust in handling his own affairs. We appreciate that the inquiry into what is common may not be as easy in other cases, particularly given the absence of regulatory guidance. But once you depart in the name of ease of administration from the language chosen by Congress, there is more than one way to skin the cat: The Trustee raises administrability concerns in support of his causation test, Reply Brief for Petitioner 6, but so does the Government in explaining why it prefers the Court of Appeals’ approach to the one it has successfully advanced before the Tax Court and two Federal Circuits. Congress’s decision to phrase the pertinent inquiry in terms of a prediction about a hypothetical situation inevitably entails some uncertainty, but that is no excuse for judicial amendment of the statute. The Code elsewhere poses similar questions—such as whether expenses are “ordinary,” see §§162(a), 212; see also Deputy, Administratrix v. Du Pont, 308 U. S. 488, 495 (1940) (noting that “[o]rdinary has the connotation of normal, usual, or customary”)—and the inquiry is in any event what §67(e)(1) requires. As the Solicitor General concedes, some trust-related investment advisory fees may be fully deductible “if an investment advisor were to impose a special, additional charge applicable only to its fiduciary accounts.” Brief for Respondent 25. There is nothing in the record, however, to suggest that Warfield charged the Trustee anything extra, or treated the Trust any differently than it would have treated an individual with similar objectives, because of the Trustee’s fiduciary obligations. See App. 24–27. It is conceivable, moreover, that a trust may have an unusual investment objective, or may require a specialized balancing of the interests of various parties, such that a reasonable comparison with individual investors would be improper. In such a case, the incremental cost of expert advice beyond what would normally be required for the ordinary taxpayer would not be subject to the 2% floor. Here, however, the Trust has not asserted that its investment objective or its requisite balancing of competing interests was distinctive. Accordingly, we conclude that the investment advisory fees incurred by the Trust are subject to the 2% floor. The judgment of the Court of Appeals is affirmed. It is so ordered. Footnote 1 Because this case is only about trusts, we generally refer to trusts throughout, but the analysis applies equally to estates. Footnote 2 Forty-four States and the District of Columbia have adopted versions of the Uniform Prudent Investor Act. See 7B U. L. A. 1–2 (2006) (listing States that have enacted the Uniform Prudent Investor Act). Five of the remaining six States have adopted their own versions of the prudent investor standard. See Del. Code Ann., Tit. 12, §3302 (1995 ed. and 2006 Supp.); Ga. Code Ann. §53–12–287 (1997); La. Stat. Ann. §9:2127 (West 2005); Md. Est. & Trusts Code Ann. §15–114 (Lexis 2001); S. D. Codified Laws §55–5–6 (2004). Kentucky, the only remaining State, applies the prudent investor standard only in certain circumstances. See Ky. Rev. Stat. Ann. §286.3–277 (Lexis 2007 Cum. Supp.); §§386.454(1), 386.502 (Supp. 2007). Footnote 3 The Solicitor General embraces this position in this Court, arguing that the Court of Appeals’ approach represents the best reading of the statute and establishes an easily administrable rule. See Brief for Respondent 17–20, 22. Indeed, after the Court of Appeals’ decision, the Commissioner adopted that court’s reading of the statute in a proposed regulation. See Section 67 Limitations on Estates or Trusts, 72 Fed. Reg. 41243, 41245 (2007) (notice of proposed rulemaking) (a trust-related cost is exempted from the 2% floor only if “an individual could not have incurred that cost in connection with property not held in an estate or trust” (emphasis added)). The Government did not advance this argument before the Court of Appeals. See Brief for Appellee in No. 05–5151–AG (CA2), pp. 3–4, 22–24. In fact, the notice of proposed rulemaking appears to be the first time the Government has ever taken this position, and we are the first Court to which the argument has been made in a brief. See Brief for United States in Mellon Bank v. United States, No. 01–5015 (CA Fed.), p. 27 (“[I]f a trust-related administrative expense is also customarily or habitually incurred outside of trusts, then it is subject to the two-percent floor”); Brief for United States in Scott v. United States, No. 02–1464 (CA4), p. 27 (same). Footnote 4 In pressing the Court of Appeals’ approach, the Solicitor General argues that “to say that a team would not have won the game if it were not for the quarterback’s outstanding play is to say that the team could not have won without the quarterback.” Brief for Respondent 19. But the Solicitor General simply posits the truth of a proposition—that the team would not have won the game if it were not for the quarterback’s outstanding play—and then states its equivalent. The statute, in contrast, does not posit any proposition. Rather, it asks a question: whether a particular cost would have been incurred if the property were held by an individual instead of a trust.
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552.US.248
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Petitioner, a participant in a defined contribution pension plan, alleged that the plan administrator’s failure to follow petitioner’s investment directions “depleted” his interest in the plan by approximately $150,000 and amounted to a breach of fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA). The District Court granted respondents judgment on the pleadings, and the Fourth Circuit affirmed. Relying on Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134, the Circuit held that ERISA §502(a)(2) provides remedies only for entire plans, not for individuals. Held: Although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, it does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account. Section 502(a)(2) provides for suits to enforce the liability-creating provisions of §409, concerning breaches of fiduciary duties that harm plans. The principal statutory duties imposed by §409 relate to the proper management, administration, and investment of plan assets, with an eye toward ensuring that the benefits authorized by the plan are ultimately paid to plan participants. The misconduct that petitioner alleges falls squarely within that category, unlike the misconduct in Russell. There, the plaintiff received all of the benefits to which she was contractually entitled, but sought consequential damages arising from a delay in the processing of her claim. Russell’s emphasis on protecting the “entire plan” reflects the fact that the disability plan in Russell, as well as the typical pension plan at that time, promised participants a fixed benefit. Misconduct by such a plan’s administrators will not affect an individual’s entitlement to a defined benefit unless it creates or enhances the risk of default by the entire plan. For defined contribution plans, however, fiduciary misconduct need not threaten the entire plan’s solvency to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants or only to particular individuals, it creates the kind of harms that concerned §409’s draftsmen. Thus, Russell’s “entire plan” references, which accurately reflect §409’s operation in the defined benefit context, are beside the point in the defined contribution context. Pp. 4–8. 450 F. 3d 570, vacated and remanded. Stevens, J., delivered the opinion of the Court, in which Souter, Ginsburg, Breyer, and Alito, JJ., joined. Roberts, C. J., filed an opinion concurring in part and concurring in the judgment, in which Kennedy, J., joined. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined.
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In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), we held that a participant in a disability plan that paid a fixed level of benefits could not bring suit under §502(a)(2) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 891, 29 U. S. C. §1132(a)(2), to recover consequential damages arising from delay in the processing of her claim. In this case we consider whether that statutory provision authorizes a participant in a defined contribution pension plan to sue a fiduciary whose alleged misconduct impaired the value of plan assets in the participant’s individual account.[Footnote 1] Relying on our decision in Russell, the Court of Appeals for the Fourth Circuit held that §502(a)(2) “provides remedies only for entire plans, not for individuals… . Recovery under this subsection must ‘inure[ ] to the benefit of the plan as a whole,’ not to particular persons with rights under the plan.” 450 F. 3d 570, 572–573 (2006) (quoting Russell, 473 U. S., at 140). While language in our Russell opinion is consistent with that conclusion, the rationale for Russell’s holding supports the opposite result in this case. I Petitioner filed this action in 2004 against his former employer, DeWolff, Boberg & Associates (DeWolff), and the ERISA-regulated 401(k) retirement savings plan administered by DeWolff (Plan). The Plan permits participants to direct the investment of their contributions in accordance with specified procedures and requirements. Petitioner alleged that in 2001 and 2002 he directed DeWolff to make certain changes to the investments in his individual account, but DeWolff never carried out these directions. Petitioner claimed that this omission “depleted” his interest in the Plan by approximately $150,000, and amounted to a breach of fiduciary duty under ERISA. The complaint sought “ ‘make-whole’ or other equitable relief as allowed by [§502(a)(3)],” as well as “such other and further relief as the court deems just and proper.” Civil Action No. 2:04–1747–18 (D. S. C.), p. 4, 2 Record, Doc. 1. Respondents filed a motion for judgment on the pleadings, arguing that the complaint was essentially a claim for monetary relief that is not recoverable under §502(a)(3). Petitioner countered that he “d[id] not wish for the court to award him any money, but … simply want[ed] the plan to properly reflect that which would be his interest in the plan, but for the breach of fiduciary duty.” Reply to Defendants Motion to Dismiss, p. 7, 3 id., Doc. 17. The District Court concluded, however, that since respondents did not possess any disputed funds that rightly belonged to petitioner, he was seeking damages rather than equitable relief available under §502(a)(3). Assuming, arguendo, that respondents had beached a fiduciary duty, the District Court nonetheless granted their motion. On appeal petitioner argued that he had a cognizable claim for relief under §§502(a)(2) and 502(a)(3) of ERISA. The Court of Appeals stated that petitioner had raised his §502(a)(2) argument for the first time on appeal, but nevertheless rejected it on the merits. Section 502(a)(2) provides for suits to enforce the liability-creating provisions of §409, concerning breaches of fiduciary duties that harm plans.[Footnote 2] The Court of Appeals cited language from our opinion in Russell suggesting that that these provisions “protect the entire plan, rather than the rights of an individual beneficiary.” 473 U. S., at 142. It then characterized the remedy sought by petitioner as “personal” because he “desires recovery to be paid into his plan account, an instrument that exists specifically for his benefit,” and concluded: “We are therefore skeptical that plaintiff’s individual remedial interest can serve as a legitimate proxy for the plan in its entirety, as [§502(a)(2)] requires. To be sure, the recovery plaintiff seeks could be seen as accruing to the plan in the narrow sense that it would be paid into plaintiff’s plan account, which is part of the plan. But such a view finds no license in the statutory text, and threatens to undermine the careful limitations Congress has placed on the scope of ERISA relief.” 450 F. 3d, at 574. The Court of Appeals also rejected petitioner’s argument that the make-whole relief he sought was “equitable” within the meaning of §502(a)(3). Although our grant of certiorari, 551 U. S. ___ (2007), encompassed the §502(a)(3) issue, we do not address it because we conclude that the Court of Appeals misread §502(a)(2). II As the case comes to us we must assume that respondents breached fiduciary obligations defined in §409(a), and that those breaches had an adverse impact on the value of the plan assets in petitioner’s individual account. Whether petitioner can prove those allegations and whether respondents may have valid defenses to the claim are matters not before us.[Footnote 3] Although the record does not reveal the relative size of petitioner’s account, the legal issue under §502(a)(2) is the same whether his account includes 1% or 99% of the total assets in the plan. As we explained in Russell, and in more detail in our later opinion in Varity Corp. v. Howe, 516 U. S. 489, 508–512 (1996), §502(a) of ERISA identifies six types of civil actions that may be brought by various parties. The second, which is at issue in this case, authorizes the Secretary of Labor as well as plan participants, beneficiaries, and fiduciaries, to bring actions on behalf of a plan to recover for violations of the obligations defined in §409(a). The principal statutory duties imposed on fiduciaries by that section “relate to the proper management, administration, and investment of fund assets,” with an eye toward ensuring that “the benefits authorized by the plan” are ultimately paid to participants and beneficiaries. Russell, 473 U. S., at 142; see also Varity, 516 U. S., at 511–512 (noting that §409’s fiduciary obligations “relat[e] to the plan’s financial integrity” and “reflec[t] a special congressional concern about plan asset management”). The misconduct alleged by the petitioner in this case falls squarely within that category.[Footnote 4] The misconduct alleged in Russell, by contrast, fell outside this category. The plaintiff in Russell received all of the benefits to which she was contractually entitled, but sought consequential damages arising from a delay in the processing of her claim. 473 U. S., at 136–137. In holding that §502(a)(2) does not provide a remedy for this type of injury, we stressed that the text of §409(a) characterizes the relevant fiduciary relationship as one “with respect to a plan,” and repeatedly identifies the “plan” as the victim of any fiduciary breach and the recipient of any relief. See id., at 140. The legislative history likewise revealed that “the crucible of congressional concern was misuse and mismanagement of plan assets by plan administrators.” Id., at 141, n. 8. Finally, our review of ERISA as a whole confirmed that §§502(a)(2) and 409 protect “the financial integrity of the plan,” id., at 142, n. 9, whereas other provisions specifically address claims for benefits. See id., at 143–144 (discussing §§502(a)(1)(B) and 503). We therefore concluded: “A fair contextual reading of the statute makes it abundantly clear that its draftsmen were primarily concerned with the possible misuse of plan assets, and with remedies that would protect the entire plan, rather than with the rights of an individual beneficiary.” Id., at 142. Russell’s emphasis on protecting the “entire plan” from fiduciary misconduct reflects the former landscape of employee benefit plans. That landscape has changed. Defined contribution plans dominate the retirement plan scene today.[Footnote 5] In contrast, when ERISA was enacted, and when Russell was decided, “the [defined benefit] plan was the norm of American pension practice.” J. Langbein, S. Stabile, & B. Wolk, Pension and Employee Benefit Law 58 (4th ed. 2006); see also Zelinsky, The Defined Contribution Paradigm, 114 Yale L. J. 451, 471 (2004) (discussing the “significant reversal of historic patterns under which the traditional defined benefit plan was the dominant paradigm for the provision of retirement income”). Unlike the defined contribution plan in this case, the disability plan at issue in Russell did not have individual accounts; it paid a fixed benefit based on a percentage of the employee’s salary. See Russell v. Massachusetts Mut. Life Ins. Co., 722 F. 2d 482, 486 (CA9 1983). The “entire plan” language in Russell speaks to the impact of §409 on plans that pay defined benefits. Misconduct by the administrators of a defined benefit plan will not affect an individual’s entitlement to a defined benefit unless it creates or enhances the risk of default by the entire plan. It was that default risk that prompted Congress to require defined benefit plans (but not defined contribution plans) to satisfy complex minimum funding requirements, and to make premium payments to the Pension Benefit Guaranty Corporation for plan termination insurance. See Zelinsky, 114 Yale L. J., at 475–478. For defined contribution plans, however, fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants and beneficiaries, or only to persons tied to particular individual accounts, it creates the kind of harms that concerned the draftsmen of §409. Consequently, our references to the “entire plan” in Russell, which accurately reflect the operation of §409 in the defined benefit context, are beside the point in the defined contribution context. Other sections of ERISA confirm that the “entire plan” language from Russell, which appears nowhere in §409 or §502(a)(2), does not apply to defined contribution plans. Most significant is §404(c), which exempts fiduciaries from liability for losses caused by participants’ exercise of control over assets in their individual accounts. See also 29 CFR §2550.404c–1 (2007). This provision would serve no real purpose if, as respondents argue, fiduciaries never had any liability for losses in an individual account. We therefore hold that although §502(a)(2) does not provide a remedy for individual injuries distinct from plan injuries, that provision does authorize recovery for fiduciary breaches that impair the value of plan assets in a participant’s individual account. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.[Footnote 6] It is so ordered. Footnote 1 As its names imply, a “defined contribution plan” or “individual account plan” promises the participant the value of an individual account at retirement, which is largely a function of the amounts contributed to that account and the investment performance of those contributions. A “defined benefit plan,” by contrast, generally promises the participant a fixed level of retirement income, which is typically based on the employee’s years of service and compensation. See §§3(34)–(35), 29 U. S. C. §§1002(34)–(35); P. Schneider & B. Freedman, ERISA: A Comprehensive Guide §3.02 (2d ed. 2003). Footnote 2 Section 409(a) provides: “Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this title shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 411 of this Act.” 88 Stat. 886, 29 U. S. C. §1109(a). Footnote 3 For example, we do not decide whether petitioner made the alleged investment directions in accordance with the requirements specified by the Plan, whether he was required to exhaust remedies set forth in the Plan before seeking relief in federal court pursuant to §502(a)(2), or whether he asserted his rights in a timely fashion. Footnote 4 The record does not reveal whether the alleged $150,000 injury represents a decline in the value of assets that DeWolff should have sold or an increase in the value of assets that DeWolff should have purchased. Contrary to respondents’ argument, however, §502(a)(2) encompasses appropriate claims for “lost profits.” See Brief for Respondents 12–13. Under the common law of trusts, which informs our interpretation of ERISA’s fiduciary duties, see Varity, 516 U. S., at 496–497, trustees are “chargeable with … any profit which would have accrued to the trust estate if there had been no breach of trust,” including profits forgone because the trustee “fails to purchase specific property which it is his duty to purchase.” 1 Restatement (Second) Trusts §205, and Comment i, §211 (1957); see also 3 A. Scott, Law on Trusts §§205, 211 (3d ed. 1967). Footnote 5 See, e.g., D. Rajnes, An Evolving Pension System: Trends in Defined Benefit and Defined Contribution Plans, Employee Benefit Research Institute (EBRI) Issue Brief No. 249 (Sept. 2002), http://www.ebri.org/ pdf/briefspdf/0902ib.pdf (all Internet materials as visited Jan. 28, 2008, and available in Clerk of Court’s case file); Facts from EBRI: Retirement Trends in the United States Over the Past Quarter-Century (June 2007), http://www.ebri.org/pdf/publications/facts/0607fact.pdf. Footnote 6 After our grant of certiorari respondents filed a motion to dismiss the writ, contending that the case is moot because petitioner is no longer a participant in the Plan. While his withdrawal of funds from the Plan may have relevance to the proceedings on remand, we denied their motion because the case is not moot. A plan “participant,” as defined by §3(7) of ERISA, 29 U. S. C. §1002(7), may include a former employee with a colorable claim for benefits. See, e.g., Harzewski v. Guidant Corp., 489 F. 3d 799 (CA7 2007).
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552.US.23
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Under federal law, the maximum prison term for a felon convicted of possessing a firearm is ordinarily 10 years. See 18 U. S. C. §924(a)(2). If the offender’s prior criminal record includes at least three convictions for “violent felon[ies,]” however, the Armed Career Criminal Act of 1984 (ACCA) mandates a minimum term of 15 years. See §924(e)(1). Congress defined the term “violent felony” to include specified crimes “punishable by imprisonment for a term exceeding one year,” §924(e)(2)(B), but also provided that a state-law misdemeanor may qualify as a “violent felony” if the offense is punishable by a term of more than two years, §921(a)(20)(B). Congress amended §921(a)(20) in 1986 to exclude from qualification for enhanced sentencing “any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights [i.e., rights to vote, hold office, and serve on a jury] restored.” Petitioner Logan pleaded guilty to being a felon in possession of a firearm and received a 15-year sentence, the mandatory minimum under ACCA. In imposing this sentence, the court took account of three Wisconsin misdemeanor battery convictions, each of them punishable by a 3-year maximum sentence, and none of them revoking any of Logan’s civil rights. Logan challenged his sentence on the ground that his state-court convictions fell within §921(a)(20)’s “civil rights restored” exemption from ACCA’s reach. Rights retained, Logan argued, should be treated the same as rights revoked but later restored. The District Court disagreed, holding that the exemption applies only to defendants whose civil rights were both lost and restored, and the Seventh Circuit affirmed. Held: The exemption contained in §921(a)(20) does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation. Pp. 6–13. (a) The ordinary meaning of the word “restored”—giving back something that has been taken away—does not include retention of something never lost. Moreover, the context in which “restored” appears in §921(a)(20) counsels adherence to the word’s ordinary meaning. In §921(a)(20), the words “civil rights restored” appear in the company of “expunged,” “set aside,” and “pardoned.” Each of those terms describes a measure by which the government relieves an offender of some or all of the consequences of his conviction. In contrast, a defendant who retains rights is simply left alone. He receives no status-altering dispensation, no token of forgiveness from the government. Pp. 6–7. (b) Logan’s dominant argument against a plain-meaning approach is not persuasive. He relies on the harsh result a literal reading could yield: Unless retention of rights is treated as legally equivalent to restoration of rights, he maintains, less serious offenders will be subject to ACCA’s enhanced penalties while more serious offenders in the same State, who have had civil rights restored, may escape heightened punishment. Logan urges that this result is not merely anomalous; it is absurd, particularly in States where restoration of civil rights occurs automatically upon release from prison. Pp. 7–8. Logan’s harsh or absurd consequences argument overlooks §921(a)(20)’s “unless” clause, under which an offender gains no exemption from ACCA’s application through an expungement, set aside, pardon, or restoration of civil rights if the dispensation “expressly provides that the [offender] may not ship, transport, possess, or receive firearms.” Many States that restore felons’ civil rights (or accord another measure of forgiveness) nonetheless impose or retain firearms disabilities. Further, Wisconsin no longer punishes misdemeanors by more than two years’ imprisonment, and thus no longer has any misdemeanors that qualify as ACCA predicates. Pp. 8–9. The resolution Logan proposes, in any event, would correct one potential anomaly while creating others. Under Logan’s proposed construction, all crimes, including first-degree murder, would be treated as crimes for which “civil rights [have been] restored” in a State that does not revoke any offender’s civil rights, while less serious crimes committed elsewhere would not. Accepting Logan’s argument would also undercut §921(a)(20)(B), which subjects to ACCA state misdemeanor convictions punishable by more than two years’ imprisonment. Because misdemeanors generally entail no revocation of civil rights, reading the word “restored” to include “retained” would yield this curiosity: An offender would fall within ACCA’s reach if his three prior offenses carried potential prison terms of over two years, but would be released from ACCA’s grip by virtue of his retention of civil rights. This Court is disinclined to say that what Congress imposed with one hand (exposure to ACCA) it withdrew with the other (exemption from ACCA). Even assuming that when Congress revised §921(a)(20) in 1986, it labored under the misapprehension that all misdemeanants and felons at least temporarily forfeit civil rights, and indulging the further assumption that courts may repair such a congressional oversight or mistake, this Court is not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights; nor can the Court recast §921(a)(20) in Congress’ stead. Pp. 9–11. Section 922(g)(9)—which was adopted 10 years after §921(a)(20) was given its current shape and which outlaws possession of a firearm by anyone “convicted … of a misdemeanor crime of domestic violence”—cautions against any assumption that Congress did not mean to deny the §921(a)(20) exemption to offenders who retained their civil rights. Tailored to §922(g)(9), Congress adopted a definitional provision, §921(a)(33)(B)(ii), corresponding to §921(a)(20), which specifies expungement, set aside, pardon, or restoration of rights as dispensations that can cancel lingering effects of a conviction. That provision also demonstrates that the words “civil rights restored” do not cover a person whose civil rights were never taken away. It provides for restoration of civil rights as a qualifying dispensation only “if the law of the applicable jurisdiction provides for the loss of civil rights” in the first place. Section 921(a)(33)(B)(ii) also rebuts Logan’s absurdity argument. Statutory terms may be interpreted against their literal meaning where the words could not conceivably have been intended to apply to the case at hand. See, e.g., Green v. Bock Laundry Machine Co., 490 U. S. 504, 511. In §921(a)(33)(B)(ii), however, Congress explicitly distinguished between “restored” and “retained,” thereby making it more than conceivable that the Legislature, albeit an earlier one, meant to do the same in §921(a)(20). Pp. 11–13. 453 F. 3d 804, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court.
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Petitioner James D. Logan pleaded guilty in a United States District Court to being a felon in possession of a firearm, in violation of 18 U. S. C. §922(g)(1). Logan’s record as a recidivist, which included three relevant state convictions, led the District Court to impose a 15-year prison term, the minimum sentence mandated by the Armed Career Criminal Act of 1984 (ACCA), 18 U. S. C. §924(e)(1) (2000 ed., Supp. V). For ACCA sentence-enhancement purposes, a prior conviction may be disregarded if the conviction “has been expunged, or set aside,” or the offender “has been pardoned or has had civil rights restored.” §921(a)(20) (2000 ed.). None of Logan’s prior convictions have been expunged or set aside. Nor has he been pardoned for any past crime. And, bearing importantly on the instant petition, the three state-court convictions that triggered Logan’s ACCA-enhanced sentence occasioned no loss of civil rights. Challenging his enhanced sentence, Logan presents this question: Does the “civil rights restored” exemption contained in §921(a)(20) encompass, and therefore remove from ACCA’s reach, state-court convictions that at no time deprived the offender of civil rights? We hold that the §921(a)(20) exemption provision does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation. Section 921(a)(20) sets out postconviction events—expungement, set aside, pardon, or restoration of civil rights—that extend to an offender a measure of forgiveness, relieving him from some or all of the consequences of his conviction. Congress might have broadened the §921(a)(20) exemption provision to cover convictions attended by no loss of civil rights. The national lawmakers, however, did not do so. Section 921(a)(20)’s failure to exempt convictions that do not revoke civil rights produces anomalies. But so does the extension of the §921(a)(20) exemption that Logan advances. We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights; nor can we recast §921(a)(20) in Congress’ stead. I Federal law generally prohibits the possession of a firearm by a person convicted of “a crime punishable by imprisonment for a term exceeding one year.” 18 U. S. C. §922(g)(1). Ordinarily, the maximum felon-in-possession sentence is 10 years. See §924(a)(2). If the offender’s prior criminal record includes at least three convictions for “violent felon[ies]” or “serious drug offense[s],” however, the maximum sentence increases to life, and ACCA mandates a minimum term of 15 years. §924(e)(1) (2000 ed., Supp. V). Congress defined the term “violent felony” to include specified crimes “punishable by imprisonment for a term exceeding one year.” §924(e)(2)(B) (2000 ed.). An offense classified by a State as a misdemeanor, however, may qualify as a “violent felony” for ACCA-enhancement purposes (or as a predicate for a felon-in-possession conviction under §922(g)) only if the offense is punishable by more than two years in prison. §921(a)(20)(B). In Dickerson v. New Banner Institute, Inc., 460 U. S. 103 (1983), we held that a State’s expungement of a conviction did not nullify the conviction for purposes of the firearms disabilities Congress placed in §§922(g)(1) and (h)(1). In so ruling, we noted that our decision would ensure greater uniformity in federal sentences. See id., at 119–120. Provisions for expungement “var[ied] widely from State to State,” we observed, id., at 120, and yielded “nothing less than a national patchwork,” id., at 122. In the Firearms Owners’ Protection Act (FOPA), 100 Stat. 449 (1986), Congress amended §921(a)(20) in response to Dickerson’s holding that, for purposes of federal firearms disabilities, state law did not determine the present impact of a prior conviction. The amended provision excludes from qualification as a “crime punishable by imprisonment for a term exceeding one year” (or a misdemeanor under state law punishable by more than two years in prison): “Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored … unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 U. S. C. §921(a)(20).[Footnote 1] While §921(a)(20) does not define the term “civil rights,” courts have held, and petitioner agrees, that the civil rights relevant under the above-quoted provision are the rights to vote, hold office, and serve on a jury. See Brief for Petitioner 13, n. 10; cf. Caron v. United States, 524 U. S. 308, 316 (1998). II On May 31, 2005, police officers responded to a domestic disturbance complaint made by Logan’s girlfriend, Asenath Wilson. App. 9, 12. Wilson told the officers, among other things, that she had seen Logan with a gun and that he usually kept it in the car. Ibid. Logan, who was with Wilson when the police arrived, consented to a search of his car. Id., at 11. In a hidden compartment behind the glove box, the officers found a 9-millimeter handgun. Id., at 9–10, 12. Logan pleaded guilty to the federal offense of possession of a firearm after having been convicted of a felony. Id., at 12. (In 1991, he had been convicted in an Illinois court of unlawful possession of a controlled substance. Id., at 9–10, 12.) The United States District Court for the Western District of Wisconsin sentenced Logan to imprisonment for 15 years, the mandatory minimum under ACCA. In imposing that enhanced sentence, the District Court took account of Logan’s three Wisconsin misdemeanor battery convictions, each punishable by a maximum sentence of three years’ imprisonment. Id., at 16–18.[Footnote 2] Both in the District Court and on appeal, Logan argued that his Wisconsin misdemeanor convictions did not qualify as ACCA predicate offenses because they caused no loss of his civil rights. Rights retained, he urged, are functionally equivalent to rights revoked but later restored. If the exemption contained in §921(a)(20) covered the three state-court misdemeanor convictions, Logan’s maximum sentence, in lieu of the 15-year mandatory minimum under ACCA, would have been 10 years, see §924(a)(2), and the United States Sentencing Guidelines would have indicated a sentence range of 37 to 46 months, see Brief for Petitioner 5. The District Court rejected Logan’s argument, holding that the §921(a)(20) exemption provision “applies only to defendants whose civil rights were both lost and restored pursuant to state statutes.” App. to Pet. for Cert. 11. Accordingly, the court sentenced Logan to imprisonment for 15 years. Id., at 12. The United States Court of Appeals for the Seventh Circuit affirmed, concluding that “an offender whose civil rights have been neither diminished nor returned is not a person who ‘has had civil rights restored.’ ” 453 F. 3d 804, 805 (2006). Logan’s argument for treating retained rights the same way as restored rights, the appeals court observed, “go[es] in the teeth of [§921(a)(20)’s] text.” Ibid. We granted certiorari, 549 U. S. ___ (2007), to resolve a split among the Circuits as to whether §921(a)(20)’s exception for “civil rights restored” should be interpreted to include civil rights retained at all times. Compare 453 F. 3d, at 809 (case below) (“civil rights restored” does not include civil rights never revoked), and McGrath v. United States, 60 F. 3d 1005 (CA2 1995) (same), with United States v. Indelicato, 97 F. 3d 627, 631 (CA1 1996) (“civil rights restored” includes civil rights never lost). III Logan pleaded guilty to being a felon in possession of a firearm, in violation of §922(g)(1), and received a mandatory minimum 15-year sentence because he had at least three prior convictions for “violent felon[ies].” §924(e)(1) (2000 ed., Supp. V). He acknowledges his convictions in Wisconsin for three battery offenses that facially qualify as violent felonies under §921(a)(20)(B) (2000 ed.). See Brief for Petitioner 4–5. Thus the sole matter in dispute is whether Logan fits within the exemption from an ACCA-enhanced sentence for convictions “expunged, or set aside” or offenders who “ha[ve] been pardoned or ha[ve] had civil rights restored.” §921(a)(20). None of Logan’s battery convictions have been expunged, set aside, or pardoned. See 453 F. 3d, at 809. Under Wisconsin law, felons lose but can regain their civil rights and can gain the removal of firearms disabilities. See Wis. Stat. §6.03(1)(b) (Supp. 2006); Wis. Const., Art. XIII, §3(2); Wis. Stat. §756.02 (2001); §973.176(1) (2007). Persons convicted of misdemeanors, however, even if they are repeat offenders, generally retain their civil rights and are not subject to firearms disabilities. With this background in view, we turn to the proper interpretation of the §921(a)(20) exemption from ACCA-enhanced sentencing for offenders who have had their “civil rights restored.” Logan’s misdemeanor convictions, we reiterate, did not result in any loss of the rights to vote, hold public office, or serve on juries. Should he nonetheless be ranked with offenders whose rights were terminated but later restored? The ordinary meaning of the word “restored” affords Logan no aid. In line with dictionary definitions,[Footnote 3] the Court of Appeals stated: “The word ‘restore’ means to give back something that had been taken away.” 453 F. 3d, at 805. Accord McGrath, 60 F. 3d, at 1007 (“The ‘restoration’ of a thing never lost or diminished is a definitional impossibility.”); cf. Indelicato, 97 F. 3d, at 629 (“Clearly the ordinary reading of the word ‘restored’ supports the government.”). The context in which the word “restored” appears in §921(a)(20) counsels adherence to the word’s ordinary meaning. Words in a list are generally known by the company they keep. E.g., Dole v. Steelworkers, 494 U. S. 26, 36 (1990); Beecham v. United States, 511 U. S. 368, 371 (1994). In §921(a)(20), the words “civil rights restored” appear in the company of the words “expunged,” “set aside,” and “pardoned.” Each term describes a measure by which the government relieves an offender of some or all of the consequences of his conviction. In contrast, a defendant who retains rights is simply left alone. He receives no status-altering dispensation, no token of forgiveness from the government. Opposing a plain-meaning approach to the language Congress enacted, Logan relies dominantly on the harsh results a literal reading could yield: Unless retention of rights is treated as legally equivalent to restoration of rights, less serious offenders will be subject to ACCA’s enhanced penalties while more serious offenders in the same State, who have had civil rights restored, may escape heightened punishment. E.g., Reply Brief 8 (“[I]ndividuals who have committed more serious crimes than Petitioner may nonetheless have their rights restored, whereas misdemeanants who never lost their rights must suffer enhanced sentencing.”). Logan urges that this result—treating those who never lost their civil rights more harshly than those who lost, then regained, those rights—is not merely anomalous; it rises to the level of the absurd, particularly in States where restoration of civil rights is automatic and occurs immediately upon release from prison. See Caron, 524 U. S., at 313 (automatic restoration of rights qualifies for §921(a)(20)’s exemption). Logan’s argument, we note, overlooks §921(a)(20)’s “unless” clause. Under that provision, an offender gains no exemption from ACCA’s application through an expungement, set aside, pardon, or restoration of civil rights if the dispensation “expressly provides that the [offender] may not ship, transport, possess, or receive firearms.” Many States that restore felons’ civil rights (or accord another measure of forgiveness) nonetheless impose or retain firearms disabilities. See Brief for United States 30 (citing, inter alia, La. Stat. Ann. §14:95.1(C) (West Supp. 2007), under which felons’ firearms disabilities are lifted only after 10 years and only if no further felony convictions intervene).[Footnote 4] We further note that Wisconsin has addressed, and prospectively eliminated, the anomaly Logan asserts he encountered: Wisconsin no longer punishes misdemeanors by more than two years of imprisonment, and thus no longer has any misdemeanors that qualify as ACCA predicates. See supra, at 4–5, n. 2. One can demur to Logan’s argument that a literal reading of §921(a)(20) could produce anomalous results, for the resolution he proposes—reading into the exemption convictions under which civil rights are retained—would correct one potential anomaly while creating others. See McGrath, 60 F. 3d, at 1009. Under Logan’s proposed construction, the most dangerous recidivists in a State that does not revoke any offender’s civil rights could fall within §921(a)(20)’s exemption. For example, Maine does not deprive any offenders of their civil rights. See Lodging for National Association of Criminal Defense Lawyers et al. as Amici Curiae (NACDL Lodging), App. 1, pp. 23–24. As Logan would have us read §921(a)(20), all Maine crimes, including first-degree murder, would be treated as crimes for which “civil rights [have been] restored,” while less serious crimes committed elsewhere would not. In McGrath, the Second Circuit incisively identified Congress’ response to Dickerson, see supra, at 3, as the cause of the multiple anomalies §921(a)(20) may produce: “[Congress’] decision to have restoration triggered by events governed by state law insured anomalous results. The several states have considerably different laws governing pardon, expungement, and forfeiture and restoration of civil rights. Furthermore, states have drastically different policies as to when and under what circumstances such discretionary acts of grace should be extended… . [Anomalies generated by §921(a)(20)] are the inevitable consequence of making access to the exemption depend on the differing laws and policies of the several states.” 60 F. 3d, at 1009. Accord 453 F. 3d, at 807 (“When Congress replaced Dickerso[n] … it ensured that similarly situated people would be treated differently—for states vary widely in which if any civil rights a convict loses and whether these rights are restored.”). See also M. Love, Relief from the Collateral Consequences of a Criminal Conviction: A State-by-State Resource Guide (2006), updated online at http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=486 (as visited Nov. 27, 2007, and in Clerk of Court’s case file) (surveying state practices). Were we to accept Logan’s argument, it bears emphasis, we would undercut §921(a)(20)(B), which places within ACCA’s reach state misdemeanor convictions punishable by more than two years’ imprisonment. Because state-law misdemeanors generally entail no revocation of civil rights,[Footnote 5] Logan’s proposed reading of the word “restored” to include “retained” would yield this curiosity: An offender would fall within ACCA’s reach if his three prior offenses carried potential prison terms of over two years, but that same offender would be released from ACCA’s grip by virtue of his retention of civil rights. We are disinclined to say that what Congress imposed with one hand (exposure to ACCA) it withdrew with the other (exemption from ACCA). We may assume, arguendo, that when Congress revised §921(a)(20) in 1986, see supra, at 3, it labored under the misapprehension that all offenders—misdemeanants as well as felons—forfeit civil rights, at least temporarily. Even indulging the further assumption that courts may repair such a congressional oversight or mistake,[Footnote 6] we could hardly divine the revision the Legislature would favor. Perhaps Congress would choose to exempt offenders who never lost their civil rights. See McGrath, 60 F. 3d, at 1009. But it is also plausible that Congress would remove the exemption for civil rights restoration as insufficiently indicative of official forgiveness. Or, Congress might elect to include restorations of civil rights along with expungements, set asides, and pardons only if the restoration was nonautomatic, i.e., granted on a case-by-case basis. Homing in on the disparities resulting from diverse state legislation, see supra, at 9–10, Congress might even revise §921(a)(20) to provide, in accord with Dickerson, that federal rather than state law defines a conviction for purposes of §§922 and 924. See 453 F. 3d, at 806–807. In all events, a measure adopted ten years after §921(a)(20) was given its current shape cautions against any assumption that Congress did not mean to deny that exemption to offenders who retained their civil rights. In 1996, Congress enacted §922(g)(9), which outlaws possession of a firearm by anyone “who has been convicted … of a misdemeanor crime of domestic violence.” See Pub. L. 104–208, Tit. VI, §658, 110 Stat. 3009–371 to 3009–372. Tailored to §922(g)(9), Congress adopted a definitional provision, corresponding to §921(a)(20), which reads: “A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 U. S. C. §921(a)(33)(B)(ii) (emphasis added). Section 921(a)(33)(B)(ii) tracks §921(a)(20) in specifying expungement, set aside, pardon, or restoration of rights as dispensations that can cancel lingering effects of a conviction. But the emphasized parenthetical qualification shows that the words “civil rights restored” do not cover a person whose civil rights were never taken away. See 453 F. 3d, at 808. Section 921(a)(33)(B)(ii) casts considerable doubt on Logan’s hypothesis that, had Congress adverted to the issue when it drafted §921(a)(20), it would have placed in the same category persons who regained civil rights and persons who retained civil rights. Congress’ enactment of §921(a)(33)(B)(ii) is also relevant to Logan’s absurdity argument. See supra, at 7–8. Statutory terms, we have held, may be interpreted against their literal meaning where the words “could not conceivably have been intended to apply” to the case at hand. Cabell v. Markham, 148 F. 2d 737, 739 (CA2) (L. Hand, J.), aff’d, 326 U. S. 404 (1945); see Green v. Bock Laundry Machine Co., 490 U. S. 504, 511 (1989) (Federal Rule of Evidence 609(a)(1) “can’t mean what it says” (internal quotation marks omitted)). In this case, it can hardly be maintained that Congress could not have meant what it said. Congress explicitly distinguished between “restored” and “retained” in §921(a)(33)(B)(ii). It is more than “conceivable” that the Legislature, albeit an earlier one, see supra, at 3, meant to do the same in §921(a)(20). In sum, Congress framed §921(a)(20) to serve two purposes. See Tr. of Oral Arg. 28–29. It sought to qualify as ACCA predicate offenses violent crimes that a State classifies as misdemeanors yet punishes by a substantial term of imprisonment, i.e., more than two years. See §921(a)(20)(B). Congress also sought to defer to a State’s dispensation relieving an offender from disabling effects of a conviction. See supra, at 3. Had Congress included a retention-of-rights exemption, however, the very misdemeanors it meant to cover would escape ACCA’s reach. See supra, at 10. Logan complains of an anomalous result. Yet the solution he proposes would also produce anomalies. See supra, at 9. Having no warrant to stray from §921(a)(20)’s text, we hold that the words “civil rights restored” do not cover the case of an offender who lost no civil rights. * * * For the reasons stated, the judgment of the Court of Appeals for the Seventh Circuit is Affirmed. Footnote 1 The Firearms Owners’ Protection Act, 100 Stat. 449, included a “safety valve” provision under which persons subject to federal firearms disabilities, including persons whose civil rights have not been restored, may apply to the Attorney General for relief from the disabilities. See 18 U. S. C. §925(c) (2000 ed., Supp. V). The relief provision has been rendered inoperative, however, for Congress has repeatedly barred the Attorney General from using appropriated funds “to investigate or act upon [relief] applications.” United States v. Bean, 537 U. S. 71, 74–75 (2002) (internal quotation marks omitted). The bar on funding was renewed every year from 1992 through 2006. See id., at 75, n. 3 (1992 through 2002); Consolidated Appropriations Resolution, 2003, 117 Stat. 433; Consolidated Appropriations Act, 2004, 118 Stat. 53; Consolidated Appropriations Act, 2005, 118 Stat. 2859; Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, 119 Stat. 2290. Footnote 2 Under Wisconsin law, misdemeanor battery is ordinarily punishable by a maximum term of nine months. See Wis. Stat. §940.19(1) (2005); §939.51(3). Logan was exposed to a three-year maximum term for each offense, however, because he was convicted as a “repeater” or “habitual” criminal. See App. 16–17; Wis. Stat. §939.62 (1999–2000). Postdating Logan’s battery convictions, Wisconsin prospectively reduced the maximum term for “repeater” misdemeanors to two years. See 2001 Wis. Act 109, §562 (Jan. 2002 special session) (amending Wis. Stat. §939.62). Misdemeanors committed in Wisconsin after this reduction no longer qualify as “violent felonies” under 18 U. S. C. §921(a)(20). Logan has never argued that his Wisconsin convictions should not count as ACCA predicates because they were punishable by more than two years’ imprisonment solely because of his status as a recidivist offender. We express no opinion on this matter. Cf. United States v. Rodriguez, 464 F. 3d 1072 (CA9 2006), cert. granted, 551 U. S. ___ (2007). Footnote 3 See, e.g., Webster’s Third New International Dictionary 1936 (1993) (defining “restore” to mean “give back (as something lost or taken away)”); American Heritage Dictionary 1486 (4th ed. 2000) (defining “restore” to mean “bring back into existence or use; reestablish”); 13 Oxford English Dictionary 755 (2d ed. 1989) (defining “restore” to mean “give back, [or] make return or restitution of (anything previously taken away or lost)”). Footnote 4 Courts have divided on the question whether §921(a)(20)’s “unless” clause is triggered whenever state law provides for the continuation of firearm proscriptions, or only when the State provides individual notice to the offender of the firearms disabilities. Compare, e.g., United States v. Cassidy, 899 F. 2d 543, 549 (CA6 1990) (courts must look to “the whole of state law”), with United States v. Gallaher, 275 F. 3d 784, 791, and n. 3 (CA9 2001) (individualized notice is required). We express no opinion on this issue. Footnote 5 See NACDL Lodging, App. 1 (compiling state laws); id., at 17–34 (indicating that Connecticut, Florida, Iowa, Louisiana, Nebraska, and New Hampshire revoke no misdemeanant’s civil rights, but provide for punishment of certain crimes they classify as misdemeanors by prison terms exceeding two years). Footnote 6 But see Iselin v. United States, 270 U. S. 245, 251 (1926) (“enlargement of [a statute] by [a] court, so that what was omitted, presumably by inadvertence, may be included within its scope … transcends the judicial function”).
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554.US.84
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When the National Government ordered its contractor, respondent Knolls, to reduce its work force, Knolls had its managers score their subordinates on “performance,” “flexibility,” and “critical skills”; these scores, along with points for years of service, were used to determine who was laid off. Of the 31 employees let go, 30 were at least 40 years old. Petitioners (Meacham, for short) were among those laid off, and they filed this suit asserting, inter alia, a disparate-impact claim under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. To show such an impact, Meacham relied on a statistical expert’s testimony that results so skewed according to age could rarely occur by chance; and that the scores for “flexibility” and “criticality,” over which managers had the most discretionary judgment, had the firmest statistical ties to the outcomes. The jury found for Meacham on the disparate-impact claim, and the Second Circuit initially affirmed. This Court vacated the judgment and remanded in light of its intervening decision in Smith v. City of Jackson, 544 U. S. 228. The Second Circuit then held for Knolls, finding its prior ruling untenable because it had applied a “business necessity” standard rather than a “reasonableness” test in assessing the employer’s reliance on factors other than age in the layoff decisions, and because Meacham had not carried the burden of persuasion as to the reasonableness of Knolls’s non-age factors. Held: An employer defending a disparate-impact claim under the ADEA bears both the burden of production and the burden of persuasion for the “reasonable factors other than age” (RFOA) affirmative defense under §623(f)(1). Pp. 5–17. (a) The ADEA’s text and structure indicate that the RFOA exemption creates an affirmative defense, for which the burden of persuasion falls on the employer. The RFOA exemption is listed alongside one for bona fide occupational qualifications (BFOQ), which the Court has recognized to be an affirmative defense: “It shall not be unlawful for an employer … to take any action otherwise prohibited under subsections (a), (b), (c), or (e) … where age is a [BFOQ] reasonably necessary to the normal operation of the particular business, or where the differentiation is based on [RFOA] … .” §623(f)(1). Given that the statute lays out its exemptions in a provision separate from the general prohibitions in §§623(a)–(c), (e), and expressly refers to the prohibited conduct as such, it is no surprise that this Court has spoken of both the BFOQ and RFOA as being among the ADEA’s “five affirmative defenses,” Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 122. This reading follows the familiar principle that “[w]hen a proviso … carves an exception out of the body of a statute or contract those who set up such exception must prove it,” Javierre v. Central Altagracia, 217 U. S. 502, 508. As this longstanding convention is part of the backdrop against which the Congress writes laws, the Court respects it unless there is compelling reason to think that Congress put the burden of persuasion on the other side. See Schaffer v. Weast, 546 U. S. 49, 57–58. The Court has given this principle particular weight in enforcing the Fair Labor Standards Act of 1968, Corning Glass Works v. Brennan, 417 U. S. 188, 196–197; and it has also recognized that “the ADEA [is] enforced in accordance with the ‘powers, remedies, and procedures’ of the FLSA,” Lorillard v. Pons, 434 U. S. 575, 580. Nothing in §623(f)(1) suggests that Congress meant it to march out of step with either the general or specifically FLSA default rules placing the burden of proving an exemption on the party claiming it. Any further doubt would be dispelled by the natural implication of the “otherwise prohibited” language prefacing the BFOQ and RFOA defenses. Pp. 5–9. (b) Knolls argues that because the RFOA clause bars liability where action is taken for reasons “other than age,” it should be read as mere elaboration on an element of liability. But City of Jackson confirmed that §623(a)(2)’s prohibition extends to practices with a disparate impact, inferring this result in part from the presence of the RFOA provision. 544 U. S., at 239, 243. And City of Jackson made it clear that action based on a “factor other than age” is the very premise for disparate-impact liability, not a negation of it or a defense to it. Thus, it is assumed that a non-age factor was at work in such a case, and the focus of the RFOA defense is on whether the factor relied on was “reasonable.” Pp. 10–11. (c) The business necessity test has no place in ADEA disparate-impact cases; applying both that test and the RFOA defense would entail a wasteful and confusing structure of proof. The absence of a business necessity enquiry does not diminish, however, the reasons already given for reading the RFOA as an affirmative defense. City of Jackson cannot be read as implying that the burden of proving any business-related defense falls on the plaintiff, for it confirmed that the BFOQ is an affirmative defense, see 544 U. S., at 233, n. 3. Moreover, in referring to “Wards Cove’s interpretation of identical language [in Title VII],” City of Jackson could not have had the RFOA clause in mind, for Title VII has no like-worded defense. And as Wards Cove did not purport to construe any Title VII defenses, only an over-reading of City of Jackson would find in it an assumption that Wards Cove has anything to say about statutory defenses in the ADEA. Pp. 12–15. (d) City of Jackson confirmed that an ADEA disparate-impact plaintiff must “ ‘ “isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities.” ’ ” 544 U. S., at 241. This is not a trivial burden, and it ought to allay some of the concern that recognizing an employer’s burden of persuasion on an RFOA defense will encourage strike suits or nudge plaintiffs with marginal cases into court; but in the end, such concerns have to be directed at Congress, which set the balance by both creating the RFOA exemption and writing it in the orthodox format of an affirmative defense. Pp. 15–17. 461 F. 3d 134, vacated and remanded. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Ginsburg, and Alito, JJ., joined, and in which Thomas, J., joined as to Parts I and II–A. Scalia, J., filed an opinion concurring in the judgment. Thomas, J., filed an opinion concurring in part and dissenting in part. Breyer, J., took no part in the consideration or decision of the case.
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A provision of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq., creates an exemption for employer actions “otherwise prohibited” by the ADEA but “based on reasonable factors other than age” (RFOA). §623(f)(1). The question is whether an employer facing a disparate-impact claim and planning to defend on the basis of RFOA must not only produce evidence raising the defense, but also persuade the factfinder of its merit. We hold that the employer must do both. I The National Government pays private companies to do some of the work maintaining the Nation’s fleet of nuclear-powered warships. One such contractor is respondent KAPL, Inc. (Knolls), the operator of the Government’s Knolls Atomic Power Laboratory, which has a history dating back to the first nuclear-powered submarines in the 1940s and 1950s. The United States Navy and the Department of Energy jointly fund Knolls’s operations, decide what projects it should pursue, and set its annual staffing limits. In recent years, Knolls has been charged with designing prototype naval nuclear reactors and with training Navy personnel to run them. The demands for naval nuclear reactors changed with the end of the Cold War, and for fiscal year 1996 Knolls was ordered to reduce its work force. Even after a hundred or so employees chose to take the company’s ensuing buyout offer, Knolls was left with thirty-some jobs to cut.[Footnote 1] Petitioners (Meacham, for short) are among those laid off in the resulting “involuntary reduction in force.” In order to select those for layoff, Knolls told its managers to score their subordinates on three scales, “performance,” “flexibility,” and “critical skills.”[Footnote 2] The scores were summed, along with points for years of service, and the totals determined who should be let go. Of the 31 salaried employees laid off, 30 were at least 40 years old.[Footnote 3] Twenty-eight of them sued, raising both disparate-treatment (discriminatory intent) and disparate-impact (discriminatory result) claims under the ADEA and state law, alleging that Knolls “designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees.” Meacham v. Knolls Atomic Power Laboratory, 381 F. 3d 56, 61 (CA2 2004) (Meacham I). To show a disparate impact, the workers relied on a statistical expert’s testimony to the effect that results so skewed according to age could rarely occur by chance;[Footnote 4] and that the scores for “flexibility” and “criticality,” over which managers had the most discretionary judgment, had the firmest statistical ties to the outcomes. Id., at 65. The jury found for Meacham on the disparate-impact claim (but not on the disparate-treatment claim). The Court of Appeals affirmed, after examining the verdict through the lens of the so-called “burden shifting” scheme of inference spelled out in Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989). See Meacham I, supra, at 74–76.[Footnote 5] After Knolls sought certiorari, we vacated the judgment and remanded for further proceedings in light of Smith v. City of Jackson, 544 U. S. 228 (2005), decided while Knolls’s petition was pending. See 544 U. S. 957 (2005). On remand, the same Court of Appeals panel ruled in favor of Knolls, over a dissent. 461 F. 3d 134 (CA2 2006) (case below) (Meacham II). The majority found its prior ruling “untenable” because it had applied the Wards Cove “business necessity” standard rather than a “reasonableness” test, contrary to City of Jackson; and on the latter standard, Meacham, the employee, had not carried the burden of persuasion. 461 F.3d, at 140–141, 144.[Footnote 6] In dissent, Judge Pooler took issue with the majority for confusing business justifications under Wards Cove with the statutory RFOA exemption, which she read to be an affirmative defense with the burden of persuasion falling on defendants. 461 F.3d, at 147, 149–152.[Footnote 7] Meacham sought certiorari, noting conflicting decisions assigning the burden of persuasion on the reasonableness of the factor other than age; the Court of Appeals in this case placed it on the employee (to show the non-age factor unreasonable), but the Ninth Circuit in Criswell v. Western Airlines, Inc., 709 F. 2d 544, 552 (1983), had assigned it to the employer (to show the factor was a reasonable one). In fact it was in Criswell that we first took up this question, only to find it not well posed in that case. Western Air Lines, Inc. v. Criswell, 472 U. S. 400, 408, n. 10 (1985). We granted certiorari, 552 U. S. ___ (2007), and now vacate the judgment of the Second Circuit and remand.[Footnote 8] II A The ADEA’s general prohibitions against age discrimination, 29 U. S. C. §§623(a)–(c), (e), are subject to a separate provision, §623(f), creating exemptions for employer practices “otherwise prohibited under subsections (a), (b), (c), or (e).” The RFOA exemption is listed in §623(f) alongside one for bona fide occupational qualifications (BFOQ): “It shall not be unlawful for an employer … to take any action otherwise prohibited under subsections (a), (b), (c), or (e) … where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age … .” §623(f)(1). Given how the statute reads, with exemptions laid out apart from the prohibitions (and expressly referring to the prohibited conduct as such), it is no surprise that we have already spoken of the BFOQ and RFOA provisions as being among the ADEA’s “five affirmative defenses,” Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 122 (1985). After looking at the statutory text, most lawyers would accept that characterization as a matter of course, thanks to the familiar principle that “[w]hen a proviso … carves an exception out of the body of a statute or contract those who set up such exception must prove it.” Javierre v. Central Altagracia, 217 U. S. 502, 508 (1910) (opinion for the Court by Holmes, J.); see also FTC v. Morton Salt Co., 334 U. S. 37, 44–45 (1948) (“[T]he burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits …”); United States v. First City Nat. Bank of Houston, 386 U. S. 361, 366 (1967) (citing Morton Salt, supra, at 44–45). That longstanding convention is part of the backdrop against which the Congress writes laws, and we respect it unless we have compelling reasons to think that Congress meant to put the burden of persuasion on the other side. See Schaffer v. Weast, 546 U. S. 49, 57–58 (2005) (“Absent some reason to believe that Congress intended otherwise, therefore, we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief”). We have never been given any reason for a heterodox take on the RFOA clause’s nearest neighbor, and our prior cases recognize that the BFOQ clause establishes an affirmative defense against claims of disparate treatment. See, e.g., City of Jackson, supra, at 233, n. 3; Western Air Lines, Inc., supra, at 414–419, and nn. 24, 29. We have likewise given the affirmative defense construction to the exemption in the Equal Pay Act of 1963 for pay differentials based on “any other factor other than sex,” Corning Glass Works v. Brennan, 417 U. S. 188, 196 (1974) (internal quotation marks omitted); and there, we took account of the particular weight given to the interpretive convention already noted, when enforcing the Fair Labor Standards Act of 1938 (FLSA), id., at 196–197 (“[T]he general rule [is] that the application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof”). This focus makes the principle of construction the more instructive in ADEA cases: “[i]n enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation,” Lorillard v. Pons, 434 U. S. 575, 581 (1978). And we have remarked and relied on the “significant indication of Congress’ intent in its directive that the ADEA be enforced in accordance with the ‘powers, remedies, and procedures’ of the FLSA.” Id., at 580 (quoting 29 U. S. C. §626(b); emphasis deleted); see also Fogerty v. Fantasy, Inc., 510 U. S. 517, 528 (1994) (applying reasoning of Lorillard); Thurston, supra, at 126 (same). As against this interpretive background, there is no hint in the text that Congress meant §623(f)(1) to march out of step with either the general or specifically FLSA default rules placing the burden of proving an exemption on the party claiming it. With these principles and prior cases in mind, we find it impossible to look at the text and structure of the ADEA and imagine that the RFOA clause works differently from the BFOQ clause next to it. Both exempt otherwise illegal conduct by reference to a further item of proof, thereby creating a defense for which the burden of persuasion falls on the “one who claims its benefits,” Morton Salt Co., supra, at 44–45, the “party seeking relief,” Schaffer, supra, at 57–58, and here, “the employer,” Corning Glass Works, supra, at 196. If there were any doubt, the stress of the idiom “otherwise prohibited,” prefacing the BFOQ and RFOA conditions, would dispel it.[Footnote 9] The implication of affirmative defense is underscored by contrasting §623(f)(1) with the section of the ADEA at issue in Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158 (1989), and by the way Congress responded to our decision there. In Betts, we said the issue was whether a provision in a former version of §623(f)(2), one about employee benefit plans, merely “redefine[d] the elements of a plaintiff’s prima facie case,” or instead “establish[ed] a defense” to what “otherwise would be a violation of the Act.” Id., at 181.[Footnote 10] Although the provision contained no “otherwise prohibited” kind of language, we said that it “appears on first reading to describe an affirmative defense.” Ibid. We nonetheless thought that this more natural view (which we had taken in Thurston) was overridden by evidence of legislative history, by the peculiarity of a pretext-revealing condition in the phrasing of the provision (that a benefit plan “not [be] a subterfuge to evade the purposes” of the ADEA), and by the parallel with a prior case construing an “analogous provision of Title VII” (analogous because it also contained a pretext-revealing condition). 492 U. S., at 181. A year later, however, Congress responded to Betts by enacting the Older Workers Benefit Protection Act, Pub. L. 101–433, 104 Stat. 978, avowedly to “restore the original congressional intent” that the ADEA’s benefits provision be read as an affirmative defense, id., §101. What is instructive on the question at hand is that, in clarifying that §623(f)(2) specifies affirmative defenses, Congress not only set the burden in so many words but also added the phrase “otherwise prohibited” as a part of the preface (just as in the text of §623(f)(1)).[Footnote 11] Congress thus confirmed the natural implication that we find in the “otherwise prohibited” language in §623(f)(1): it refers to an excuse or justification for behavior that, standing alone, violates the statute’s prohibition. The amendment in the aftermath of Betts shows that Congress understands the phrase the same way we naturally read it, as a clear signal that a defense to what is “otherwise prohibited” is an affirmative defense, entirely the responsibility of the party raising it. B Knolls ventures that, regardless, the RFOA provision should be read as mere elaboration on an element of liability. Because it bars liability where action is taken for reasons “other than age,” the argument goes, the provision must be directed not at justifying age discrimination by proof of some extenuating fact but at negating the premise of liability under §623(a)(2), “because of age.” The answer to this argument, however, is City of Jackson, where we confirmed that the prohibition in §623(a)(2) extends to practices with a disparate impact, inferring this result in part from the presence of the RFOA provision at issue here.[Footnote 12] We drew on the recognized distinction between disparate-treatment and disparate-impact forms of liability, and explained that “the very definition of disparate impact” was that “an employer who classifies his employees without respect to age may still be liable under the terms of this paragraph if such classification adversely affects the employee because of that employee’s age.” 544 U. S., at 236, n. 6 (plurality opinion); id., at 243 (Scalia, J., concurring in part and concurring in judgment) (expressing agreement with “all of the Court’s reasoning” in the plurality opinion, but finding it a basis for deference to the EEOC rather than for independent judicial decision). We emphasized that these were the kinds of employer activities, “otherwise prohibited” by §623(a)(2), that were mainly what the statute meant to test against the RFOA condition: because “[i]n disparate-impact cases … the allegedly ‘otherwise prohibited’ activity is not based on age,” it is “in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a non- age factor that was ‘reasonable.’ ” Id., at 239 (plurality opinion). Thus, in City of Jackson, we made it clear that in the typical disparate-impact case, the employer’s practice is “without respect to age” and its adverse impact (though “because of age”) is “attributable to a nonage factor”; so action based on a “factor other than age” is the very premise for disparate-impact liability in the first place, not a negation of it or a defense to it. The RFOA defense in a disparate-impact case, then, is not focused on the asserted fact that a non-age factor was at work; we assume it was. The focus of the defense is that the factor relied upon was a “reasonable” one for the employer to be using. Reasonableness is a justification categorically distinct from the factual condition “because of age” and not necessarily correlated with it in any particular way: a reasonable factor may lean more heavily on older workers, as against younger ones, and an unreasonable factor might do just the opposite.[Footnote 13] III The Court of Appeals majority rejected the affirmative defense reading and arrived at its position on the burden of proof question by a different route: because it read our decision in City of Jackson as ruling out the so-called “business necessity” enquiry in ADEA cases, the court concluded that the RFOA defense “replaces” it and therefore must conform to its burden of persuasion resting on the complaining party. But the court’s premise (that City of Jackson modified the “business necessity” enquiry) is mistaken; this alone would be reason enough to reject its approach. And although we are now satisfied that the business necessity test should have no place in ADEA disparate-impact cases, we agree with the Government that this conclusion does not stand in the way of our holding that the RFOA exemption is an affirmative defense. See Brief for United States as Amicus Curiae 25–27. To begin with, when the Court of Appeals further inferred from the City of Jackson reference to Wards Cove that the Wards Cove burden of persuasion (on the employee, for the business necessity enquiry) also applied to the RFOA defense, it gave short shrift to the reasons set out in Part II–A, supra, for reading RFOA as an affirmative defense (with the burden on the employer). But we think that even on its own terms, City of Jackson falls short of supporting the Court of Appeals’s conclusion. Although City of Jackson contains the statement that “Wards Cove’s pre-1991 interpretation of Title VII’s identical language remains applicable to the ADEA,” 544 U. S., at 240, City of Jackson made only two specific references to aspects of the Wards Cove interpretation of Title VII that might have “remain[ed] applicable” in ADEA cases. One was to the existence of disparate-impact liability, which City of Jackson explained was narrower in ADEA cases than under Title VII. The other was to a plaintiff-employee’s burden of identifying which particular practices allegedly cause an observed disparate impact, which is the employee’s burden under both the ADEA and the pre-1991 Title VII. See 544 U. S., at 241. Neither of these references, of course, is at odds with the view of RFOA as an affirmative defense. If, indeed, City of Jackson’s reference to Wards Cove could be read literally to include other aspects of the latter case, beyond what mattered in City of Jackson itself, the untoward consequences of the broader reading would rule it out. One such consequence is embraced by Meacham, who argues both that the Court of Appeals was wrong to place the burden of persuasion for the RFOA defense on the employee, and that the court was right in thinking that City of Jackson adopted the Wards Cove burden of persuasion on what Meacham views as one element of an ADEA impact claim. For Meacham takes the position that an impact plaintiff like himself has to negate business necessity in order to show that the employer’s actions were “otherwise prohibited”; only then does the RFOA (with the burden of persuasion on the employer) have a role to play. To apply both tests, however, would force the parties to develop (and the court or jury to follow) two overlapping enquiries: first, whether the employment practice at issue (based on a factor other than age) is supported by a business justification; and second, whether that factor is a reasonable one. Depending on how the first enquiry proceeds, a plaintiff might directly contest the force of the employer’s rationale, or else try to show that the employer invoked it as a pretext by pointing (for example) to alternative practices with less of a disparate impact. See Wards Cove, 490 U. S., at 658 (“first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternative practices to achieve the same business ends, with less racial impact”); see also id., at 658–661. But even if the plaintiff succeeded at one or the other, in Meacham’s scheme the employer could still avoid liability by proving reasonableness. Here is what is so strange: as the Government says, “[i]f disparate-impact plaintiffs have already established that a challenged practice is a pretext for intentional age discrimination, it makes little sense then to ask whether the discriminatory practice is based on reasonable factors other than age.” Brief for United States as Amicus Curiae 26 (emphasis in original). Conversely, proving the reasonableness defense would eliminate much of the point a plaintiff would have had for showing alternatives in the first place: why make the effort to show alternative practices with a less discriminatory effect (and besides, how would that prove pretext?), when everyone knows that the choice of a practice relying on a “reasonable” non-age factor is good enough to avoid liability?[Footnote 14] At the very least, developing the reasonableness defense would be substantially redundant with the direct contest over the force of the business justification, especially when both enquiries deal with the same, narrowly specified practice. It is not very fair to take the remark about Wards Cove in City of Jackson as requiring such a wasteful and confusing structure of proof. Nor is there any good way to read the same line from City of Jackson as implying that the burden of proving any business-related defense falls on the plaintiff; most obviously, this would entail no longer taking the BFOQ clause to be an affirmative defense, which City of Jackson confirmed that it is, see 544 U. S., at 233, n. 3. What is more, City of Jackson could not have had the RFOA clause in mind as “identical” to anything in Title VII (for which a Wards Cove’s reading might be adopted), for that statute has no like-worded defense. And as Wards Cove did not purport to construe any statutory defenses under Title VII, only an over-reading of City of Jackson would find lurking in it an assumption that Wards Cove has anything to say about statutory defenses in the ADEA (never mind one that Title VII does not have). IV As mentioned, where City of Jackson did get help from our prior reading of Title VII was in relying on Wards Cove to repeat that a plaintiff falls short by merely alleging a disparate impact, or “point[ing] to a generalized policy that leads to such an impact.” City of Jackson, 544 U. S., at 241. The plaintiff is obliged to do more: to “isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities.” Ibid. (quoting Wards Cove, supra, at 656; emphasis in original; internal quotation marks omitted). The aim of this requirement, as City of Jackson said, is to avoid the “result [of] employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances.’ ” 544 U. S., at 241 (quoting Wards Cove, supra, at 657; some internal quotation marks omitted). And as the outcome in that case shows, the requirement has bite: one sufficient reason for rejecting the employees’ challenge was that they “ha[d] done little more than point out that the pay plan at issue [was] relatively less generous to older workers than to younger workers,” and “ha[d] not identified any specific test, requirement, or practice within the pay plan that ha[d] an adverse impact on older workers.” City of Jackson, supra, at 241. Identifying a specific practice is not a trivial burden, and it ought to allay some of the concern raised by Knolls’s amici, who fear that recognizing an employer’s burden of persuasion on an RFOA defense to impact claims will encourage strike suits or nudge plaintiffs with marginal cases into court, in turn inducing employers to alter business practices in order to avoid being sued. See, e.g., Brief for General Electric Co. as Amicus Curiae 18–31. It is also to the point that the only thing at stake in this case is the gap between production and persuasion; nobody is saying that even the burden of production should be placed on the plaintiff. Cf. Schaffer, 546 U. S., at 56 (burden of persuasion answers “which party loses if the evidence is closely balanced”); id., at 58 (“In truth, however, very few cases will be in evidentiary equipoise”). And the more plainly reasonable the employer’s “factor other than age” is, the shorter the step for that employer from producing evidence raising the defense, to persuading the factfinder that the defense is meritorious. It will be mainly in cases where the reasonableness of the non-age factor is obscure for some reason, that the employer will have more evidence to reveal and more convincing to do in going from production to persuasion. That said, there is no denying that putting employers to the work of persuading factfinders that their choices are reasonable makes it harder and costlier to defend than if employers merely bore the burden of production; nor do we doubt that this will sometimes affect the way employers do business with their employees. But at the end of the day, amici’s concerns have to be directed at Congress, which set the balance where it is, by both creating the RFOA exemption and writing it in the orthodox format of an affirmative defense. We have to read it the way Congress wrote it. * * * As we have said before, Congress took account of the distinctive nature of age discrimination, and the need to preserve a fair degree of leeway for employment decisions with effects that correlate with age, when it put the RFOA clause into the ADEA, “significantly narrow[ing] its coverage.” City of Jackson, 544 U. S., at 233. And as the outcome for the employer in City of Jackson shows, “it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group.” Id., at 241. In this case, we realize that the Court of Appeals showed no hesitation in finding that Knolls prevailed on the RFOA defense, though the court expressed its conclusion in terms of Meacham’s failure to meet the burden of persuasion. Whether the outcome should be any different when the burden is properly placed on the employer is best left to that court in the first instance. 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. Justice Breyer took no part in the consideration or decision of this case. Footnote 1 The Naval Reactors program had lowered Knolls’s staffing limit by 108 people; as Knolls also had to hire 35 new employees for work existing personnel could not do, a total of 143 jobs would have to go. Footnote 2 The “performance” score was based on the worker’s two most recent appraisals. The “flexibility” instruction read: “Rate the employee’s flexibility within the Laboratory. Can his or her documented skills be used in other assignments that will add value to current or future Lab work? Is the employee retrainable for other Lab assignments?” The “critical skills” instruction read: “How critical are the employee’s skills to continuing work in the Lab? Is the individual’s skill a key technical resource for the [Naval Reactors] program? Is the skill readily accessible within the Lab or generally available from the external market?” App. 94–95 (emphasis in original). Footnote 3 For comparison: after the voluntary buyouts, 1,203 out of 2,063 salaried workers (or 58%) were at least 40 years old; and of the 245 who were at risk of involuntary layoff, and therefore included in the rankings scheme, 179 (or 73%) were 40 or over. Meacham v. Knolls Atomic Power Laboratory, 185 F. Supp. 2d 193, 203 (NDNY 2002). Footnote 4 The expert cut the data in different ways, showing the chances to be 1 in 348,000 (based on a population of all 2,063 salaried workers); 1 in 1,260 (based on a population of the 245 workers at risk of layoff); or 1 in 6,639 (when the analysis was broken down by sections of the company). Meacham I, 381 F. 3d, at 64–65. Footnote 5 Taking the Wards Cove steps in turn, the Court of Appeals concluded that the “jury could have found that the degree of subjective decision making allowed in the [layoff procedure] created the disparity,” 381 F. 3d, at 74; that the employer had answered with evidence of a “facially legitimate business justification,” a need “to reduce its workforce while still retaining employees with skills critical to the performance of [Knolls’s] functions,” ibid. (internal quotation marks omitted); and that petitioners would prevail nonetheless because “[a]t least one suitable alternative is clear from the record,” that Knolls “could have designed [a procedure] with more safeguards against subjectivity, in particular, tests for criticality and flexibility that are less vulnerable to managerial bias,” id., at 75. Footnote 6 Distinguishing the two tests mattered, the Court of Appeals explained, because even though “[t]here may have been other reasonable ways for [Knolls] to achieve its goals (as we held in [Meacham I]), … the one selected was not unreasonable.” Meacham II, 461 F. 3d, at 146 (citation and internal quotation marks omitted). The burden of persuasion for either test was said to fall on the plaintiff, however, because “the employer is not to bear the ultimate burden of persuasion with respect to the legitimacy of its business justification.” Id., at 142 (citing Wards Cove, 490 U. S., at 659–660; internal quotation marks omitted). The majority took note of the textual signs that the RFOA was an affirmative defense, but set them aside because “City of Jackson … emphasized that there are reasonable and permissible employment criteria that correlate with age,” thereby leaving it to plaintiffs to prove that a criterion is not reasonable. 461 F.3d, at 142–143. Footnote 7 In Judge Pooler’s view, a jury “could permissibly find that defendants had not established a RFOA based on the unmonitored subjectivity of [Knolls’s] plan as implemented.” Id., at 153 (dissenting opinion). Footnote 8 Petitioners also sought certiorari as to “[w]hether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a ‘reasonable factor other than age’ as a matter of law.” Pet. for Cert. i. We denied certiorari on this question and express no views on it here. Footnote 9 We do not need to seek further relief from doubt by looking to the Equal Employment Opportunity Commission (EEOC) regulations on burdens of proof in ADEA cases. The parties focus on two of them, but we think neither clearly answers the question here. One of them the Government has disavowed as overtaken by our decision in Smith v. City of Jackson, 544 U. S. 228 (2005), Brief for United States as Amicus Curiae 16, n. 1 (noting that 29 CFR §1625.7(d) (2007) “takes a position that does not survive” City of Jackson), for the regulation seems to require a showing of business necessity as a part of the RFOA defense. Compare 29 CFR §1625.7(d) (“When an employment practice, including a test, is claimed as a basis for different treatment … on the grounds that it is a ‘factor other than’ age, and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity”), with City of Jackson, supra, at 243 (“Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement”). And the second regulation would take a bit of stretching to cover disparate-impact cases, for its text speaks in terms of disparate treatment. See 29 CFR §1625.7(e) (concerning use of the RFOA defense against an “individual claim of discriminatory treatment”). The EEOC has lately proposed rulemaking that would revise both of these regulations, eliminating any reference to “business necessity” and placing the burden of proof on the employer “[w]henever the exception of ‘a reasonable factor other than age’ is raised.” 73 Fed. Reg. 16807–16809 (Mar. 31, 2008) (proposed 29 CFR §1625.7(e)). Footnote 10 The provision read: “It shall not be unlawful for an employer … to observe the terms of … any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter … because of the age of such individual.” 29 U. S. C. §623(f)(2) (1982 ed.). Footnote 11 Congress surely could not have meant this phrase to contradict its express allocation of the burden, in the same amendment. But that would be the upshot of Knolls’s suggestion that the only way to read the word “otherwise” as not redundant in the phrase “otherwise prohibited under subsection (a), (b), (c), or (e)” is to say that the word must refer only to §623(f)(1) itself, implying that §623(f)(1) must be a liability-creating provision for which the burden falls on the plaintiff. Brief for Respondents 33, and n. 7. Besides, this argument proves too much, for it implies that even the BFOQ exemption is not an affirmative defense. Footnote 12 In doing so, we expressly rejected the so-called “safe harbor” view of the RFOA provision. See City of Jackson, 544 U. S., at 238–239 (plurality opinion); id., at 252–253 (O’Connor, J., concurring in judgment) (describing “safe harbor” view). Footnote 13 The factual causation that §623(a)(2) describes as practices that “deprive or tend to deprive … or otherwise adversely affect [employees] … because of … age” is typically shown by looking to data revealing the impact of a given practice on actual employees. See, e.g., City of Jackson, 544 U. S., at 241 (opinion of the Court); cf. Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 657, 658–659 (1989) (under Title VII, “specific causation” is shown, and a “prima facie case” is “establish[ed],” when plaintiff identifies a specific employment practice linked to a statistical disparity); Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 995 (1988) (plurality opinion) (in Title VII cases, “statistical disparities must be sufficiently substantial that they raise … an inference of causation”). This enquiry would be muddled if the value, “reasonableness,” were to become a factor artificially boosting or discounting the factual strength of the causal link, or the extent of the measured impact. It would open the door to incoherent undershooting, for example, if defendants were heard to say that an impact is “somewhat less correlated with age, seeing as the factor is a reasonable one”; and it would be overshooting to make them show that the impact is “not correlated with age, and the factor is reasonable, besides.” Footnote 14 See City of Jackson, 544 U. S., at 243 (“While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement”).
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553.US.16
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A State may tax an apportioned share of the value generated by a multistate enterprise’s intrastate and extrastate activities that form part of a “ ‘unitary business.’ ” Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 528 U. S. 458, 460. Illinois taxed a capital gain realized by Mead, an Ohio corporation that is a wholly owned subsidiary of petitioner, when Mead sold its Lexis business division. Mead paid the tax and sued in state court. The trial court found that Lexis and Mead were not unitary because they were not functionally integrated or centrally managed and enjoyed no economies of scale. It nevertheless concluded that Illinois could tax an apportioned share of Mead’s capital gain because Lexis served an operational purpose in Mead’s business. Affirming, the State Appellate Court found that Lexis served an operational function in Mead’s business and thus did not address whether Mead and Lexis formed a unitary business. Held: 1. The state courts erred in considering whether Lexis served an “operational purpose” in Mead’s business after determining that Lexis and Mead were not unitary. Pp. 6–13. (a) The Commerce and Due Process Clauses impose distinct but parallel limitations on a State’s power to tax out-of-state activities, and each subsumes the “broad inquiry” “ ‘whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state,’ ” ASARCO Inc. v. Idaho Tax Comm’n, 458 U. S. 307, 315. Because the taxpayer here did business in the taxing State, the inquiry shifts from whether the State may tax to what it may tax. Under the unitary business principle developed to answer that question, a State need not “isolate the intrastate income-producing activities from the rest of the business” but “may tax an apportioned sum of the corporation’s multistate business if the business is unitary.” Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U. S. 768, 772. Pp. 6–8. (b) To address the problem arising from the emergence of multistate business enterprises such as railroad and telegraph companies—namely, that a State could not tax its fair share of such a business’ value by simply taxing the capital within its borders—the unitary business principle shifted the constitutional inquiry from the niceties of geographic accounting to the determination of a taxpayer’s business unit. If the value the State wished to tax derived from a “unitary business” operated within and without the State, the State could tax an apportioned share of that business’ value instead of isolating the value attributable to the intrastate operation. E.g., Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 223. But if the value derived from a “discrete business enterprise,” Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425, 439, the State could not tax even an apportioned share. E.g., Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 165–166. This principle was extended to a multistate business that lacked the “physical unity” of wires or rails but exhibited the “same unity in the use of the entire property for the specific purpose,” with “the same elements of value arising from such use,” Adams Express Co. v. Ohio, 165 U. S. 194, 221; and it has justified apportioned taxation of net income, dividends, capital gain, and other intangibles. Confronting the problem of how to determine exactly when a business is unitary, this Court found in Allied-Signal that the “principle is not so inflexible that as new [finance] methods … and new [business] forms … evolve it cannot be modified or supplemented where appropriate,” 504 U. S., at 786, and explained that situations could occur in which apportionment might be constitutional even though “the payee and the payor [were] not … engaged in the same unitary business,” id., at 787. In that context, the Court observed that an asset could form part of a taxpayer’s unitary business if it served an “operational rather than an investment function” in the business, ibid.; and noted that Container Corp., supra, at 180, n. 19, made the same point. Pp. 8–11. (c) Thus, the “operational function” references in Container Corp. and Allied-Signal were not intended to modify the unitary business principle by adding a new apportionment ground. The operational function concept simply recognizes that an asset can be a part of a taxpayer’s unitary business even without a “unitary relationship” between the “payor and payee.” In Allied-Signal and in Corn Products Co. v. Commissioner, 350 U. S. 46, the conclusion that an asset served an operational function was merely instrumental to the constitutionally relevant conclusion that the asset was a unitary part of the business conducted in the taxing State rather than a discrete asset to which the State had no claim. Container Corp. and Allied-Signal did not announce a new ground for constitutional apportionment, and the Illinois Appellate Court erred in concluding otherwise. Here, where the asset is another business, a unitary relationship’s “hallmarks” are functional integration, centralized management, and economies of scale. See Mobil Oil Corp., supra, at 438. The trial court found each hallmark lacking in finding that Lexis was not a unitary part of Mead’s business. However, the appellate court made no such determination. Relying on its operational function test, it reserved the unitary business question, which it may take up on remand. Pp. 11–13. 2. Because the alternative ground for affirmance urged by the State and its amici—that the record amply demonstrates that Lexis did substantial business in Illinois and that Lexis’ own contacts with the State suffice to justify the apportionment of Mead’s capital gain—was neither raised nor passed upon in the state courts, it will not be addressed here. The case for restraint is particularly compelling here, since the question may impact other jurisdictions’ laws. Pp. 13–14. 371 Ill. App. 3d 108, 861 N. E. 2d 1131, vacated and remanded. Alito, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.
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The Due Process and Commerce Clauses forbid the States to tax “ ‘extraterritorial values.’ ” Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 164 (1983); see also Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U. S. 768, 777 (1992); Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425, 441–442 (1980). A State may, however, tax an apportioned share of the value generated by the intrastate and extrastate activities of a multistate enterprise if those activities form part of a “ ‘unitary business.’ ” Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 528 U. S. 458, 460 (2000); Mobil Oil Corp., supra, at 438. We have been asked in this case to decide whether the State of Illinois constitutionally taxed an apportioned share of the capital gain realized by an out-of-state corporation on the sale of one of its business divisions. The Appellate Court of Illinois upheld the tax and affirmed a judgment in the State’s favor. Because we conclude that the state courts misapprehended the principles that we have developed for determining whether a multistate business is unitary, we vacate the decision of the Appellate Court of Illinois. I A Mead Corporation (Mead), an Ohio corporation, is the predecessor in interest and a wholly owned subsidiary of petitioner MeadWestvaco Corporation. From its founding in 1846, Mead has been in the business of producing and selling paper, packaging, and school and office supplies.[Footnote 1] In 1968, Mead paid $6 million to acquire a company called Data Corporation, which owned an inkjet printing technology and a full-text information retrieval system, the latter of which had originally been developed for the U. S. Air Force. Mead was interested in the inkjet printing technology because it would have complemented Mead’s paper business, but the information retrieval system proved to be the more valuable asset. Over the course of many years, Mead developed that asset into the electronic research service now known as Lexis/Nexis (Lexis). In 1994, it sold Lexis to a third party for approximately $1.5 billion, realizing just over $1 billion in capital gain, which Mead used to repurchase stock, retire debt, and pay taxes. Mead did not report any of this gain as business income on its Illinois tax returns for 1994. It took the position that the gain qualified as nonbusiness income that should be allocated to Mead’s domiciliary State, Ohio, under Illinois’ Income Tax Act (ITA). See Ill. Comp. Stat., ch. 35, §5/303(a) (West 1994). The State audited Mead’s returns and issued a notice of deficiency. According to the State, the ITA required Mead to treat the capital gain as business income subject to apportionment by Illinois.[Footnote 2] The State assessed Mead with approximately $4 million in additional tax and penalties. Mead paid that amount under protest and then filed this lawsuit in state court. The case was tried to the bench. Although the court admitted expert testimony, reports, and other exhibits into evidence, see App. D to Pet. for Cert. 29a–34a, the parties’ stipulations supplied most of the evidence of record regarding Mead’s relationship with Lexis, see App. 9–20. We summarize those stipulations here. B Lexis was launched in 1973. For the first few years it was in business, it lost money, and Mead had to keep it afloat with additional capital contributions. By the late 1970’s, as more attorneys began to use Lexis, the service finally turned a profit. That profit quickly became substantial. Between 1988 and 1993, Lexis made more than $800 million of the $3.8 billion in Illinois income that Mead reported. Lexis also accounted for $680 million of the $4.5 billion in business expense deductions that Mead claimed from Illinois during that period. Lexis was subject to Mead’s oversight, but Mead did not manage its day-to-day affairs. Mead was headquartered in Ohio, while a separate management team ran Lexis out of its headquarters in Illinois. The two businesses maintained separate manufacturing, sales, and distribution facilities, as well as separate accounting, legal, human resources, credit and collections, purchasing, and marketing departments. Mead’s involvement was generally limited to approving Lexis’ annual business plan and any significant corporate transactions (such as capital expenditures, financings, mergers and acquisitions, or joint ventures) that Lexis wished to undertake. In at least one case, Mead procured new equipment for Lexis by purchasing the equipment for its own account and then leasing it to Lexis. Mead also managed Lexis’ free cash, which was swept nightly from Lexis’ bank accounts into an account maintained by Mead. The cash was reinvested in Lexis’ business, but Mead decided how to invest it. Neither business was required to purchase goods or services from the other. Lexis, for example, was not required to purchase its paper supply from Mead, and indeed Lexis purchased most of its paper from other suppliers. Neither received any discount on goods or services purchased from the other, and neither was a significant customer of the other. Lexis was incorporated as one of Mead’s wholly owned subsidiaries until 1980, when it was merged into Mead and became one of Mead’s divisions. Mead engineered the merger so that it could offset its income with Lexis’ net operating loss carryforwards. Lexis was separately reincorporated in 1985 before being merged back into Mead in 1993. Once again, tax considerations motivated each transaction. Mead also treated Lexis as a unitary business in its consolidated Illinois returns for the years 1988 through 1994, though it did so at the State’s insistence and then only to avoid litigation. Lexis was listed as one of Mead’s “business segment[s]” in at least some of its annual reports and regulatory filings. Mead described itself in those reports and filings as “engaged in the electronic publishing business” and touted itself as the “developer of the world’s leading electronic information retrieval services for law, patents, accounting, finance, news and business information.” Id., at 93, 59; App. D to Pet. for Cert. 38a. C Based on the stipulated facts and the other exhibits and expert testimony received into evidence, the Circuit Court of Cook County concluded that Lexis and Mead did not constitute a unitary business. The trial court reasoned that Lexis and Mead could not be unitary because they were not functionally integrated or centrally managed and enjoyed no economies of scale. Id., at 35a–36a, 39a. The court nevertheless concluded that the State could tax an apportioned share of Mead’s capital gain because Lexis served an “operational purpose” in Mead’s business: “Lexis/Nexis was considered in the strategic planning of Mead, particularly in the allocation of resources. The operational purpose allowed Mead to limit the growth of Lexis/Nexis if only to limit its ability to expand or to contract through its control of its capital investment.” Id., at 38a–39a. The Appellate Court of Illinois affirmed. Mead Corp. v. Department of Revenue, 371 Ill. App. 3d 108, 861 N. E. 2d 1131 (2007). The court cited several factors as evidence that Lexis served an operational function in Mead’s business: (1) Lexis was wholly owned by Mead; (2) Mead had exercised its control over Lexis in various ways, such as manipulating its corporate form, approving significant capital expenditures, and retaining tax benefits and control over Lexis’ free cash; and (3) Mead had described itself in its annual reports and regulatory filings as engaged in electronic publishing and as the developer of the world’s leading information retrieval service. See id., at 111–112, 861 N. E. 2d, at 1135–1136. Because the court found that Lexis served an operational function in Mead’s business, it did not address the question whether Mead and Lexis formed a unitary business. See id., at 117–118, 861 N. E. 2d, at 1140. The Supreme Court of Illinois denied review in January 2007. Mead Corp. v. Illinois Dept. of Revenue, 222 Ill. 2d 609, 862 N. E. 2d 235 (Table). We granted certiorari. 551 U. S. ___ (2007). II Petitioner contends that the trial court properly found that Lexis and Mead were not unitary and that the Appellate Court of Illinois erred in concluding that Lexis served an operational function in Mead’s business. According to petitioner, the exception for apportionment of income from nonunitary businesses serving an operational function is a narrow one that does not reach a purely passive investment such as Lexis. We perceive a more fundamental error in the state courts’ reasoning. In our view, the state courts erred in considering whether Lexis served an “operational purpose” in Mead’s business after determining that Lexis and Mead were not unitary. A The Commerce Clause and the Due Process Clause impose distinct but parallel limitations on a State’s power to tax out-of-state activities. See Quill Corp. v. North Dakota, 504 U. S. 298, 305–306 (1992); Mobil Oil Corp., 445 U. S., at 451, n. 4 (Stevens, J., dissenting); Norfolk & Western R. Co. v. Missouri Tax Comm’n, 390 U. S. 317, 325, n. 5 (1968). The Due Process Clause demands that there exist “ ‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax,’ ” as well as a rational relationship between the tax and the “ ‘ “values connected with the taxing State.” ’ ” Quill Corp., supra, at 306 (quoting Miller Brothers Co. v. Maryland, 347 U. S. 340, 344–345 (1954), and Moorman Mfg. Co. v. Bair, 437 U. S. 267, 273 (1978)). The Commerce Clause forbids the States to levy taxes that discriminate against interstate commerce or that burden it by subjecting activities to multiple or unfairly apportioned taxation. See Container Corp., 463 U. S., at 170–171; Armco Inc. v. Hardesty, 467 U. S. 638, 644 (1984). The “broad inquiry” subsumed in both constitutional requirements is “ ‘whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state’ ”—that is, “ ‘whether the state has given anything for which it can ask return.’ ” ASARCO Inc. v. Idaho Tax Comm’n, 458 U. S. 307, 315 (1982) (quoting Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940)). Where, as here, there is no dispute that the taxpayer has done some business in the taxing State, the inquiry shifts from whether the State may tax to what it may tax. Cf. Allied-Signal, 504 U. S., at 778 (distinguishing Quill Corp., supra). To answer that question, we have developed the unitary business principle. Under that principle, a State need not “isolate the intrastate income-producing activities from the rest of the business” but “may tax an apportioned sum of the corporation’s multistate business if the business is unitary.” Allied-Signal, supra, at 772; accord, Hunt-Wesson, 528 U. S., at 460; Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 224 (1980); Mobil Oil Corp., supra, at 442; cf. 1 J. Hellerstein & W. Hellerstein, State Taxation ¶8.07[1], p. 8–61 (3d ed. 2001–2005) (hereinafter Hellerstein & Hellerstein). The court must determine whether “intrastate and extrastate activities formed part of a single unitary business,” Mobil Oil Corp., supra, at 438–439, or whether the out-of-state values that the State seeks to tax “ ‘derive[d] from “unrelated business activity” which constitutes a “discrete business enterprise.” ’ ” Allied-Signal, supra, at 773 (quoting Exxon Corp., supra, at 224, in turn quoting Mobil Oil Corp., supra, at 439 (alteration in original)). We traced the history of this venerable principle in Allied-Signal, supra, at 778–783, and, because it figures prominently in this case, we retrace it briefly here. B With the coming of the Industrial Revolution in the 19th century, the United States witnessed the emergence of its first truly multistate business enterprises. These railroad, telegraph, and express companies presented state taxing authorities with a novel problem: A State often cannot tax its fair share of the value of a multistate business by simply taxing the capital within its borders. The whole of the enterprise is generally more valuable than the sum of its parts; were it not, its owners would simply liquidate it and sell it off in pieces. As we observed in 1876, “[t]he track of the road is but one track from one end of it to the other, and, except in its use as one track, is of little value.” State Railroad Tax Cases, 92 U. S. 575, 608. The unitary business principle addressed this problem by shifting the constitutional inquiry from the niceties of geographic accounting to the determination of the taxpayer’s business unit. If the value the State wished to tax derived from a “unitary business” operated within and without the State, the State could tax an apportioned share of the value of that business instead of isolating the value attributable to the operation of the business within the State. E.g., Exxon Corp., supra, at 223 (citing Moorman Mfg. Co., supra, at 273). Conversely, if the value the State wished to tax derived from a “discrete business enterprise,” Mobil Oil Corp., 445 U. S., at 439, then the State could not tax even an apportioned share of that value. E.g., Container Corp., supra, at 165–166. We recognized as early as 1876 that the Due Process Clause did not require the States to assess trackage “in each county where it lies according to its value there.” State Railroad Tax Cases, 92 U. S., at 608. We went so far as to opine that “[i]t may well be doubted whether any better mode of determining the value of that portion of the track within any one county has been devised than to ascertain the value of the whole road, and apportion the value within the county by its relative length to the whole.” Ibid. We generalized the rule of the State Railroad Tax Cases in Adams Express Co. v. Ohio, State Auditor, 165 U. S. 194 (1897). There we held that apportionment could permissibly be applied to a multistate business lacking the “physical unity” of wires or rails but exhibiting the “same unity in the use of the entire property for the specific purpose,” with “the same elements of value arising from such use.” Id., at 221. We extended the reach of the unitary business principle further still in later cases, when we relied on it to justify the taxation by apportionment of net income, dividends, capital gain, and other intangibles. See Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113, 117, 120–121 (1920) (net income tax); Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271, 277, 280, 282–283 (1924) (franchise tax); J. C. Penney Co., supra, at 443–445 (tax on the “privilege of declaring dividends”); cf. Allied-Signal, supra, at 780 (“[F]or constitutional purposes capital gains should be treated as no different from dividends”); see also 1 Hellerstein & Hellerstein ¶8.07[1] (summarizing this history). As the unitary business principle has evolved in step with American enterprise, courts have sometimes found it difficult to identify exactly when a business is unitary. We confronted this problem most recently in Allied-Signal. The taxpayer there, a multistate enterprise, had realized capital gain on the disposition of its minority investment in another business. The parties’ stipulation left little doubt that the taxpayer and its investee were not unitary. See 504 U. S., at 774 (observing that “the question whether the business can be called ‘unitary’ … is all but controlled by the terms of a stipulation”). The record revealed, however, that the taxpayer had used the proceeds from the liquidated investment in an ultimately unsuccessful bid to purchase a new asset that would have been used in its unitary business. See id., at 776–777. From that wrinkle in the record, the New Jersey Supreme Court concluded that the taxpayer’s minority interest had represented nothing more than a temporary investment of working capital awaiting deployment in the taxpayer’s unitary business. See Bendix Corp. v. Director, Div. of Taxation, 125 N. J. 20, 37, 592 A. 2d 536, 545 (1991). The State went even further. It argued that, because there could be “no logical distinction between short-term investment of working capital, which all concede is apportionable, … and all other investments,” the unitary business principle was outdated and should be jettisoned. 504 U. S., at 784. We rejected both contentions. We concluded that “the unitary business principle is not so inflexible that as new methods of finance and new forms of business evolve it cannot be modified or supplemented where appropriate.” Id., at 786; see also id., at 785 (“If lower courts have reached divergent results in applying the unitary business principle to different factual circumstances, that is because, as we have said, any number of variations on the unitary business theme ‘are logically consistent with the underlying principles motivating the approach’ ” (quoting Container Corp., 463 U. S., at 167)).[Footnote 3] We explained that situations could occur in which apportionment might be constitutional even though “the payee and the payor [were] not … engaged in the same unitary business.” 504 U. S., at 787. It was in that context that we observed that an asset could form part of a taxpayer’s unitary business if it served an “operational rather than an investment function” in that business. Ibid. “Hence, for example, a State may include within the apportionable income of a nondomiciliary corporation the interest earned on short-term deposits in a bank located in another State if that income forms part of the working capital of the corporation’s unitary business, notwithstanding the absence of a unitary relationship between the corporation and the bank.” Id., at 787–788. We observed that we had made the same point in Container Corp., where we noted that “capital transactions can serve either an investment function or an operational function.” 463 U. S., at 180, n. 19; cf. Corn Products Refining Co. v. Commissioner, 350 U. S. 46, 50 (1955) (concluding that corn futures contracts in the hands of a corn refiner seeking to hedge itself against increases in corn prices are operational rather than capital assets), cited in Container Corp., supra, at 180, n. 19. C As the foregoing history confirms, our references to “operational function” in Container Corp. and Allied-Signal were not intended to modify the unitary business principle by adding a new ground for apportionment. The concept of operational function simply recognizes that an asset can be a part of a taxpayer’s unitary business even if what we may term a “unitary relationship” does not exist between the “payor and payee.” See Allied-Signal, supra, at 791–792 (O’Connor, J., dissenting); Hellerstein, State Taxation of Corporate Income from Intangibles: Allied-Signal and Beyond, 48 Tax L. Rev. 739, 790 (1993) (hereinafter Hellerstein). In the example given in Allied-Signal, the taxpayer was not unitary with its banker, but the taxpayer’s deposits (which represented working capital and thus operational assets) were clearly unitary with the taxpayer’s business. In Corn Products, the taxpayer was not unitary with the counterparty to its hedge, but the taxpayer’s futures contracts (which served to hedge against the risk of an increase in the price of a key cost input) were likewise clearly unitary with the taxpayer’s business. In each case, the “payor” was not a unitary part of the taxpayer’s business, but the relevant asset was. The conclusion that the asset served an operational function was merely instrumental to the constitutionally relevant conclusion that the asset was a unitary part of the business being conducted in the taxing State rather than a discrete asset to which the State had no claim. Our decisions in Container Corp. and Allied-Signal did not announce a new ground for the constitutional apportionment of extrastate values in the absence of a unitary business. Because the Appellate Court of Illinois interpreted those decisions to the contrary, it erred. Where, as here, the asset in question is another business, we have described the “hallmarks” of a unitary relationship as functional integration, centralized management, and economies of scale. See Mobil Oil Corp., 445 U. S., at 438 (citing Butler Brothers v. McColgan, 315 U. S. 501, 506–508 (1942)); see also Allied-Signal, supra, at 783 (same); Container Corp., supra, at 179 (same); F. W. Woolworth Co. v. Taxation and Revenue Dept. of N. M., 458 U. S. 354, 364 (1982) (same). The trial court found each of these hallmarks lacking and concluded that Lexis was not a unitary part of Mead’s business. The appellate court, however, made no such determination. Relying on its operational function test, it reserved judgment on whether Mead and Lexis formed a unitary business. The appellate court may take up that question on remand, and we express no opinion on it now. III The State and its amici argue that vacatur is not required because the judgment of the Appellate Court of Illinois may be affirmed on an alternative ground. They contend that the record amply demonstrates that Lexis did substantial business in Illinois and that Lexis’ own contacts with the State suffice to justify the apportionment of Mead’s capital gain. See Br. for Respondents 18–25, 46–49; Brief for Multistate Tax Commission as Amicus Curiae 19–29. The State and its amici invite us to recognize a new ground for the constitutional apportionment of intangibles based on the taxing State’s contacts with the capital asset rather than the taxpayer. We decline this invitation because the question that the State and its amici call upon us to answer was neither raised nor passed upon in the state courts. It also was not addressed in the State’s brief in opposition to the petition. We typically will not address a question under these circumstances even if the answer would afford an alternative ground for affirmance. See Glover v. United States, 531 U. S. 198, 205 (2001) (citing Taylor v. Freeland & Kronz, 503 U. S. 638, 646 (1992)); Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 578 (2001) (Thomas, J., concurring in part and concurring in judgment). The case for restraint is particularly compelling here, since the question may impact the law of other jurisdictions. The States of Ohio and New York, for example, have both adopted the rationale for apportionment that respondents urge us to recognize today. See Ohio Rev. Code Ann. §§5733.051(E)–(F) (West 2007 Supp. Pamphlet); N. Y. Tax Law Ann. §210(3)(b) (West Supp. 2008); see also Allied-Signal Inc. v. Department of Taxation & Finance, 229 App. Div. 2d 759, 762, 645 N. Y. S. 2d 895, 898 (3d Dept. 1996) (finding that a “sufficient nexus existed between New York and the dividend and capital gain income” of the nondomiciliary parent because “the corporations generating the income taxed … each have their own connection with the taxing jurisdiction”); 1 Hellerstein & Hellerstein ¶9.11[2][a]. Neither Ohio nor New York has appeared as an amicus in this case, and neither was on notice that the constitutionality of its tax scheme was at issue, the question having been raised for the first time in the State’s brief on the merits. So postured, the question is best left for another day.[Footnote 4] IV The judgment of the Appellate Court of Illinois is vacated, and this case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 See Prospectus of MeadWestvaco Corporation 3 (Mar. 19, 2003), online at http://www.sec.gov/Archives/edgar/data/1159297/ 000119312503085265/d424b5.htm (as visited Apr. 1, 2008, and available in Clerk of Court’s case file); App. 9. Footnote 2 When the sale of Lexis occurred in 1994, the ITA defined “business income” as “income arising from transactions and activity in the regular course of the taxpayer’s trade or business,” as well as “income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer’s regular trade or business operations.” Ill. Comp. Stat., ch. 35, §5/1501(a)(1) (West 1994). This language mirrors the definition of “business income” in the Uniform Division of Income for Tax Purposes Act (UDITPA). See UDITPA §1(a) (2002); see also §9 (subjecting “[a]ll business income” to apportionment). In 2004, the Illinois General Assembly amended the definition of “business income” to “all income that may be treated as apportionable business income under the Constitution of the United States.” Pub. Act 93–840, Art. 25, §25–5 (codified at Ill. Comp. Stat., ch. 35, §5/1501(a)(1) (West 2004)); cf. Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U. S. 768, 786 (1992) (declining to adopt UDITPA’s “business income” test as the constitutional standard for apportionment). Footnote 3 The dissent agreed that the unitary business principle remained sound, 504 U. S., at 790 (opinion of O’Connor, J.), but found merit in New Jersey’s premise (and the New Jersey Supreme Court’s conclusion) that no logical distinction could be drawn between short- or long-term investments for purposes of unitary analysis, id., at 793 (“Any distinction between short-term and long-term investments cannot be of constitutional dimension”). We need not revisit that question here. Footnote 4 Resolving this question now probably would not spare the State a remand. The State calculated petitioner’s tax liability by applying the State’s tax rate to Mead’s apportioned business income, which in turn was calculated by applying Mead’s apportionment percentage to its apportionable business income. See App. 28; Ill. Comp. Stat., ch. 35, §5/304(a) (West 1994). But if a constitutionally sufficient link between the State and the value it wishes to tax is founded on the State’s contacts with Lexis rather than Mead, then presumably the apportioned tax base should be determined by applying the State’s four-factor apportionment formula not to Mead but to Lexis. Naturally, applying the formula to Lexis rather than Mead would yield a different apportionment percentage. See Brief for Multistate Tax Commission as Amicus Curiae 18–19, and n. 9; see also Hellerstein 802–803. The Multistate Tax Commission seems to argue that the difference would not affect the result because application of the formula to Lexis would have yielded a higher apportionment percentage. See Brief for Multistate Tax Commission 18–19. Amicus argues, in other words, that petitioner has no cause to complain because it caught a break in the incorrect application of a lower apportionment percentage. Amicus’ argument assumes what we are in no position to decide: that Lexis’ own apportioned tax base was properly calculated. Had petitioner been on notice that Lexis, rather than Mead, would supply the relevant apportionment percentage, it might have persuaded the state courts that Lexis’ apportionment percentage should have been even lower than Mead’s. The State’s untimely resort to an alternative ground for affirmance may have denied petitioner a fair opportunity to make that argument.
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552.US.491
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In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Avena), the International Court of Justice (ICJ) held that the United States had violated Article 36(1)(b) of the Vienna Convention on Consular Relations (Vienna Convention or Convention) by failing to inform 51 named Mexican nationals, including petitioner Medellín, of their Vienna Convention rights. The ICJ found that those named individuals were entitled to review and reconsideration of their U. S. state-court convictions and sentences regardless of their failure to comply with generally applicable state rules governing challenges to criminal convictions. In Sanchez-Llamas v. Oregon, 548 U. S. 331—issued after Avena but involving individuals who were not named in the Avena judgment—this Court held, contrary to the ICJ’s determination, that the Convention did not preclude the application of state default rules. The President then issued a memorandum (President’s Memorandum or Memorandum) stating that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision.” Relying on Avena and the President’s Memorandum, Medellín filed a second Texas state-court habeas application challenging his state capital murder conviction and death sentence on the ground that he had not been informed of his Vienna Convention rights. The Texas Court of Criminal Appeals dismissed Medellín’s application as an abuse of the writ, concluding that neither Avena nor the President’s Memorandum was binding federal law that could displace the State’s limitations on filing successive habeas applications. Held: Neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. Pp. 8–37. 1. The Avena judgment is not directly enforceable as domestic law in state court. Pp. 8–27. (a) While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be “self-executing” and is ratified on that basis. See, e.g., Foster v. Neilson, 2 Pet. 253, 314. The Avena judgment creates an international law obligation on the part of the United States, but it is not automatically binding domestic law because none of the relevant treaty sources—the Optional Protocol, the U. N. Charter, or the ICJ Statute—creates binding federal law in the absence of implementing legislation, and no such legislation has been enacted. The most natural reading of the Optional Protocol is that it is a bare grant of jurisdiction. The Protocol says nothing about the effect of an ICJ decision, does not commit signatories to comply therewith, and is silent as to any enforcement mechanism. The obligation to comply with ICJ judgments is derived from Article 94 of the U. N. Charter, which provides that “[e]ach … Member … undertakes to comply with the [ICJ’s] decision … in any case to which it is a party.” The phrase “undertakes to comply” is simply a commitment by member states to take future action through their political branches. That language does not indicate that the Senate, in ratifying the Optional Protocol, intended to vest ICJ decisions with immediate legal effect in domestic courts. This reading is confirmed by Article 94(2)—the enforcement provision—which provides the sole remedy for noncompliance: referral to the U. N. Security Council by an aggrieved state. The provision of an express diplomatic rather than judicial remedy is itself evidence that ICJ judgments were not meant to be enforceable in domestic courts. See Sanchez-Llamas, 548 U. S., at 347. Even this “quintessentially international remed[y],” id., at 355, is not absolute. It requires a Security Council resolution, and the President and Senate were undoubtedly aware that the United States retained the unqualified right to exercise its veto of any such resolution. Medellín’s construction would eliminate the option of noncompliance contemplated by Article 94(2), undermining the ability of the political branches to determine whether and how to comply with an ICJ judgment. The ICJ Statute, by limiting disputes to those involving nations, not individuals, and by specifying that ICJ decisions have no binding force except between those nations, provides further evidence that the Avena judgment does not automatically constitute federal law enforceable in U. S. courts. Medellín, an individual, cannot be considered a party to the Avena decision. Finally, the United States’ interpretation of a treaty “is entitled to great weight,” Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S., at 184–185, and the Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law. Pp. 8–17. (b) The foregoing interpretive approach—parsing a treaty’s text to determine if it is self-executing—is hardly novel. This Court has long looked to the language of a treaty to determine whether the President who negotiated it and the Senate that ratified it intended for the treaty to automatically create domestically enforceable federal law. See, e.g., Foster, supra. Pp. 18–20. (c) The Court’s conclusion that Avena does not by itself constitute binding federal law is confirmed by the “postratification understanding” of signatory countries. See Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226. There are currently 47 nations that are parties to the Optional Protocol and 171 nations that are parties to the Vienna Convention. Yet neither Medellín nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts. The lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts. See Sanchez-Llamas, 548 U. S., at 343–344, and n. 3. The Court’s conclusion is further supported by general principles of interpretation. Given that the forum state’s procedural rules govern a treaty’s implementation absent a clear and express statement to the contrary, see e.g., id., at 351, one would expect the ratifying parties to the relevant treaties to have clearly stated any intent to give ICJ judgments such effect. There is no statement in the Optional Protocol, the U. N. Charter, or the ICJ Statute that supports this notion. Moreover, the consequences of Medellín’s argument give pause: neither Texas nor this Court may look behind an ICJ decision and quarrel with its reasoning or result, despite this Court’s holding in Sanchez-Llamas that “[n]othing in the [ICJ’s] structure or purpose … suggests that its interpretations were intended to be conclusive on our courts.” id., at 354. Pp. 20–24. (d) The Court’s holding does not call into question the ordinary enforcement of foreign judgments. An agreement to abide by the result of an international adjudication can be a treaty obligation like any other, so long as the agreement is consistent with the Constitution. In addition, Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes. Medellín contends that domestic courts generally give effect to foreign judgments, but the judgment Medellín asks us to enforce is hardly typical: It would enjoin the operation of state law and force the State to take action to “review and reconside[r]” his case. Foreign judgments awarding injunctive relief against private parties, let alone sovereign States, “are not generally entitled to enforcement.” Restatement (Third) of Foreign Relations Law of the United States §481, Comment b, p. 595 (1986). Pp. 24–27. 2. The President’s Memorandum does not independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules. Pp. 27–37. (a) The President seeks to vindicate plainly compelling interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. But those interests do not allow the Court to set aside first principles. The President’s authority to act, as with the exercise of any governmental power, “must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 585. Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action in this area. First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U. S., at 635 (Jackson, J., concurring). Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id., at 637. In such a circumstance, Presidential authority can derive support from “congressional inertia, indifference or quiescence.” Ibid. Finally, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.” Id., at 637–638. Pp. 28–29. (b) The United States marshals two principal arguments in favor of the President’s authority to establish binding rules of decision that preempt contrary state law. The United States argues that the relevant treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such authority. The United States also relies upon an “independent” international dispute-resolution power. We find these arguments, as well as Medellín’s additional argument that the President’s Memorandum is a valid exercise of his “Take Care” power, unpersuasive. Pp. 29–37. (i) The United States maintains that the President’s Memorandum is implicitly authorized by the Optional Protocol and the U. N. Charter. But the responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress, not the Executive. Foster, 2 Pet., at 315. It is a fundamental constitutional principle that “ ‘[t]he power to make the necessary laws is in Congress; the power to execute in the President.’ ” Hamdan v. Rumsfeld, 548 U. S. 557, 591. A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. Accordingly, the President’s Memorandum does not fall within the first category of the Youngstown framework. Indeed, because the non-self-executing character of the relevant treaties not only refutes the notion that the ratifying parties vested the President with the authority to unilaterally make treaty obligations binding on domestic courts, but also implicitly prohibits him from doing so, the President’s assertion of authority is within Youngstown’s third category, not the first or even the second. The United States maintains that congressional acquiescence requires that the President’s Memorandum be given effect as domestic law. But such acquiescence is pertinent when the President’s action falls within the second Youngstown category, not the third. In any event, congressional acquiescence does not exist here. Congress’ failure to act following the President’s resolution of prior ICJ controversies does not demonstrate acquiescence because in none of those prior controversies did the President assert the authority to transform an international obligation into domestic law and thereby displace state law. The United States’ reliance on the President’s “related” statutory responsibilities and on his “established role” in litigating foreign policy concerns is also misplaced. The President’s statutory authorization to represent the United States before the U. N., the ICJ, and the U. N. Security Council speaks to his international responsibilities, not to any unilateral authority to create domestic law. The combination of a non-self-executing treaty and the lack of implementing legislation does not preclude the President from acting to comply with an international treaty obligation by other means, so long as those means are consistent with the Constitution. But the President may not rely upon a non-self-executing treaty to establish binding rules of decision that pre-empt contrary state law. Pp. 30–35. (ii) The United States also claims that—independent of the United States’ treaty obligations—the Memorandum is a valid exercise of the President’s foreign affairs authority to resolve claims disputes. See, e.g., American Ins. Assn. v. Garamendi, 539 U. S. 396, 415. This Court’s claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” can “raise a presumption that the [action] had been [taken] in pursuance of its consent.” Dames & Moore v. Regan, 453 U. S. 654, 668. But “[p]ast practice does not, by itself, create power.” Ibid. The President’s Memorandum—a directive issued to state courts that would compel those courts to reopen final criminal judgments and set aside neutrally applicable state laws—is not supported by a “particularly longstanding practice.” The Executive’s limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far. Pp. 35–37. (iii) Medellín’s argument that the President’s Memorandum is a valid exercise of his power to “Take Care” that the laws be faithfully executed, U. S. Const., Art. II, §3, fails because the ICJ’s decision in Avena is not domestic law. P. 37. 223 S. W. 3d 315, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed an opinion concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.
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The International Court of Justice (ICJ), located in the Hague, is a tribunal established pursuant to the United Nations Charter to adjudicate disputes between member states. In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judgment of Mar. 31) (Avena), that tribunal considered a claim brought by Mexico against the United States. The ICJ held that, based on violations of the Vienna Convention, 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences in the United States. This was so regardless of any forfeiture of the right to raise Vienna Convention claims because of a failure to comply with generally applicable state rules governing challenges to criminal convictions. In Sanchez-Llamas v. Oregon, 548 U. S. 331 (2006)—issued after Avena but involving individuals who were not named in the Avena judgment—we held that, contrary to the ICJ’s determination, the Vienna Convention did not preclude the application of state default rules. After the Avena decision, President George W. Bush determined, through a Memorandum to the Attorney General (Feb. 28, 2005), App. to Pet. for Cert. 187a (Memorandum or President’s Memorandum), that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision.” Petitioner José Ernesto Medellín, who had been convicted and sentenced in Texas state court for murder, is one of the 51 Mexican nationals named in the Avena decision. Relying on the ICJ’s decision and the President’s Memorandum, Medellín filed an application for a writ of habeas corpus in state court. The Texas Court of Criminal Appeals dismissed Medellín’s application as an abuse of the writ under state law, given Medellín’s failure to raise his Vienna Convention claim in a timely manner under state law. We granted certiorari to decide two questions. First, is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the United States? Second, does the President’s Memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules? We conclude that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. We therefore affirm the decision below. I A In 1969, the United States, upon the advice and consent of the Senate, ratified the Vienna Convention on Consular Relations (Vienna Convention or Convention), Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, and the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention (Optional Protocol or Protocol), Apr. 24, 1963, [1970] 21 U. S. T. 325, T. I. A. S. No. 6820. The preamble to the Convention provides that its purpose is to “contribute to the development of friendly relations among nations.” 21 U. S. T., at 79; Sanchez-Llamas, supra, at 337. Toward that end, Article 36 of the Convention was drafted to “facilitat[e] the exercise of consular functions.” Art. 36(1), 21 U. S. T., at 100. It provides that if a person detained by a foreign country “so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” of such detention, and “inform the [detainee] of his righ[t]” to request assistance from the consul of his own state. Art. 36(1)(b), id., at 101. The Optional Protocol provides a venue for the resolution of disputes arising out of the interpretation or application of the Vienna Convention. Art. I, 21 U. S. T., at 326. Under the Protocol, such disputes “shall lie within the compulsory jurisdiction of the International Court of Justice” and “may accordingly be brought before the [ICJ] … by any party to the dispute being a Party to the present Protocol.” Ibid. The ICJ is “the principal judicial organ of the United Nations.” United Nations Charter, Art. 92, 59 Stat. 1051, T. S. No. 993 (1945). It was established in 1945 pursuant to the United Nations Charter. The ICJ Statute—annexed to the U. N. Charter—provides the organizational framework and governing procedures for cases brought before the ICJ. Statute of the International Court of Justice (ICJ Statute), 59 Stat. 1055, T. S. No. 993 (1945). Under Article 94(1) of the U. N. Charter, “[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party.” 59 Stat. 1051. The ICJ’s jurisdiction in any particular case, however, is dependent upon the consent of the parties. See Art. 36, 59 Stat. 1060. The ICJ Statute delineates two ways in which a nation may consent to ICJ jurisdiction: It may consent generally to jurisdiction on any question arising under a treaty or general international law, Art. 36(2), ibid., or it may consent specifically to jurisdiction over a particular category of cases or disputes pursuant to a separate treaty, Art. 36(1), ibid. The United States originally consented to the general jurisdiction of the ICJ when it filed a declaration recognizing compulsory jurisdiction under Art. 36(2) in 1946. The United States withdrew from general ICJ jurisdiction in 1985. See U. S. Dept. of State Letter and Statement Concerning Termination of Acceptance of ICJ Compulsory Jurisdiction (Oct. 7, 1985), reprinted in 24 I. L. M. 1742 (1985). By ratifying the Optional Protocol to the Vienna Convention, the United States consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention. On March 7, 2005, subsequent to the ICJ’s judgment in Avena, the United States gave notice of withdrawal from the Optional Protocol to the Vienna Convention. Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary-General of the United Nations. B Petitioner José Ernesto Medellín, a Mexican national, has lived in the United States since preschool. A member of the “Black and Whites” gang, Medellín was convicted of capital murder and sentenced to death in Texas for the gang rape and brutal murders of two Houston teenagers. On June 24, 1993, 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena were walking home when they encountered Medellín and several fellow gang members. Medellín attempted to engage Elizabeth in conversation. When she tried to run, petitioner threw her to the ground. Jennifer was grabbed by other gang members when she, in response to her friend’s cries, ran back to help. The gang members raped both girls for over an hour. Then, to prevent their victims from identifying them, Medellín and his fellow gang members murdered the girls and discarded their bodies in a wooded area. Medellín was personally responsible for strangling at least one of the girls with her own shoelace. Medellín was arrested at approximately 4 a.m. on June 29, 1993. A few hours later, between 5:54 and 7:23 a.m., Medellín was given Miranda warnings; he then signed a written waiver and gave a detailed written confession. App. to Brief for Respondent 32–36. Local law enforcement officers did not, however, inform Medellín of his Vienna Convention right to notify the Mexican consulate of his detention. Brief for Petitioner 6–7. Medellín was convicted of capital murder and sentenced to death; his conviction and sentence were affirmed on appeal. Medellín v. State, No. 71,997 (Tex. Crim. App., May 16, 1997), App. to Brief for Respondent 2–31. Medellín first raised his Vienna Convention claim in his first application for state postconviction relief. The state trial court held that the claim was procedurally defaulted because Medellín had failed to raise it at trial or on direct review. The trial court also rejected the Vienna Convention claim on the merits, finding that Medellín had “fail[ed] to show that any non-notification of the Mexican authorities impacted on the validity of his conviction or punishment.” Id., at 62.[Footnote 1] The Texas Court of Criminal Appeals affirmed. Id., at 64–65. Medellín then filed a habeas petition in Federal District Court. The District Court denied relief, holding that Medellín’s Vienna Convention claim was procedurally defaulted and that Medellín had failed to show prejudice arising from the Vienna Convention violation. See Medellín v. Cockrell, Civ. Action No. H–01–4078 (SD Tex., June 26, 2003), App. to Brief for Respondent 86–92. While Medellín’s application for a certificate of appealability was pending in the Fifth Circuit, the ICJ issued its decision in Avena. The ICJ held that the United States had violated Article 36(1)(b) of the Vienna Convention by failing to inform the 51 named Mexican nationals, including Medellín, of their Vienna Convention rights. 2004 I. C. J., at 53–55. In the ICJ’s determination, the United States was obligated “to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals.” Id., at 72. The ICJ indicated that such review was required without regard to state procedural default rules. Id., at 56–57. The Fifth Circuit denied a certificate of appealability. Medellín v. Dretke, 371 F. 3d 270, 281 (2004). The court concluded that the Vienna Convention did not confer individually enforceable rights. Id., at 280. The court further ruled that it was in any event bound by this Court’s decision in Breard v. Greene, 523 U. S. 371, 375 (1998) (per curiam), which held that Vienna Convention claims are subject to procedural default rules, rather than by the ICJ’s contrary decision in Avena. 371 F. 3d, at 280. This Court granted certiorari. Medellín v. Dretke, 544 U. S. 660, 661 (2005) (per curiam) (Medellín I). Before we heard oral argument, however, President George W. Bush issued his Memorandum to the United States Attorney General, providing: I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision. App. to Pet. for Cert. 187a. Medellín, relying on the President’s Memorandum and the ICJ’s decision in Avena, filed a second application for habeas relief in state court. Ex parte Medellín, 223 S. W. 3d 315, 322–323 (Tex. Crim. App. 2006). Because the state-court proceedings might have provided Medellín with the review and reconsideration he requested, and because his claim for federal relief might otherwise have been barred, we dismissed his petition for certiorari as improvidently granted. Medellín I, supra, at 664. The Texas Court of Criminal Appeals subsequently dismissed Medellín’s second state habeas application as an abuse of the writ. 223 S. W. 3d, at 352. In the court’s view, neither the Avena decision nor the President’s Memorandum was “binding federal law” that could displace the State’s limitations on the filing of successive habeas applications. Ibid. We again granted certiorari. 550 U. S. ___ (2007). II Medellín first contends that the ICJ’s judgment in Avena constitutes a “binding” obligation on the state and federal courts of the United States. He argues that “by virtue of the Supremacy Clause, the treaties requiring compliance with the Avena judgment are already the ‘Law of the Land’ by which all state and federal courts in this country are ‘bound.’ ” Reply Brief for Petitioner 1. Accordingly, Medellín argues, Avena is a binding federal rule of decision that pre-empts contrary state limitations on successive habeas petitions. No one disputes that the Avena decision—a decision that flows from the treaties through which the United States submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an international law obligation on the part of the United States. But not all international law obligations automatically constitute binding federal law enforceable in United States courts. The question we confront here is whether the Avena judgment has automatic domestic legal effect such that the judgment of its own force applies in state and federal courts. This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson, 2 Pet. 253, 315 (1829), overruled on other grounds, United States v. Percheman, 7 Pet. 51 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” Foster, supra, at 314. When, in contrast, “[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney v. Robertson, 124 U. S. 190, 194 (1888). In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igartúa-De La Rosa v. United States, 417 F. 3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).[Footnote 2] A treaty is, of course, “primarily a compact between independent nations.” Head Money Cases, 112 U. S. 580, 598 (1884). It ordinarily “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Ibid.; see also The Federalist No. 33, p. 207 (J. Cooke ed. 1961) (A. Hamilton) (comparing laws that individuals are “bound to observe” as “the supreme law of the land” with “a mere treaty, dependent on the good faith of the parties”). “If these [interests] fail, its infraction becomes the subject of international negotiations and reclamations … . It is obvious that with all this the judicial courts have nothing to do and can give no redress.” Head Money Cases, supra, at 598. Only “[i]f the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, [will] they have the force and effect of a legislative enactment.” Whitney, supra, at 194.[Footnote 3] Medellín and his amici nonetheless contend that the Optional Protocol, United Nations Charter, and ICJ Statute supply the “relevant obligation” to give the Avena judgment binding effect in the domestic courts of the United States. Reply Brief for Petitioner 5–6.[Footnote 4] Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law. A The interpretation of a treaty, like the interpretation of a statute, begins with its text. Air France v. Saks, 470 U. S. 392, 396–397 (1985). Because a treaty ratified by the United States is “an agreement among sovereign powers,” we have also considered as “aids to its interpretation” the negotiation and drafting history of the treaty as well as “the postratification understanding” of signatory nations. Zicherman v. Korean Air Lines Co., 516 U. S. 217, 226 (1996); see also United States v. Stuart, 489 U. S. 353, 365–366 (1989); Choctaw Nation v. United States, 318 U. S. 423, 431–432 (1943). As a signatory to the Optional Protocol, the United States agreed to submit disputes arising out of the Vienna Convention to the ICJ. The Protocol provides: “Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice.” Art. I, 21 U. S. T., at 326. Of course, submitting to jurisdiction and agreeing to be bound are two different things. A party could, for example, agree to compulsory nonbinding arbitration. Such an agreement would require the party to appear before the arbitral tribunal without obligating the party to treat the tribunal’s decision as binding. See, e.g., North American Free Trade Agreement, U. S.-Can.-Mex., Art. 2018(1), Dec. 17, 1992, 32 I. L. M. 605, 697 (1993) (“On receipt of the final report of [the arbitral panel requested by a Party to the agreement], the disputing Parties shall agree on the resolution of the dispute, which normally shall conform with the determinations and recommendations of the panel”). The most natural reading of the Optional Protocol is as a bare grant of jurisdiction. It provides only that “[d]isputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice” and “may accordingly be brought before the [ICJ] . . . by any party to the dispute being a Party to the present Protocol.” Art. I, 21 U. S. T., at 326. The Protocol says nothing about the effect of an ICJ decision and does not itself commit signatories to comply with an ICJ judgment. The Protocol is similarly silent as to any enforcement mechanism. The obligation on the part of signatory nations to comply with ICJ judgments derives not from the Optional Protocol, but rather from Article 94 of the United Nations Charter—the provision that specifically addresses the effect of ICJ decisions. Article 94(1) provides that “[e]ach Member of the United Nations undertakes to comply with the decision of the [ICJ] in any case to which it is a party.” 59 Stat. 1051 (emphasis added). The Executive Branch contends that the phrase “undertakes to comply” is not “an acknowledgement that an ICJ decision will have immediate legal effect in the courts of U. N. members,” but rather “a commitment on the part of U. N. Members to take future action through their political branches to comply with an ICJ decision.” Brief for United States as Amicus Curiae in Medellín I, O. T. 2004, No. 04–5928, p. 34. We agree with this construction of Article 94. The Article is not a directive to domestic courts. It does not provide that the United States “shall” or “must” comply with an ICJ decision, nor indicate that the Senate that ratified the U. N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, “[t]he words of Article 94 . . . call upon governments to take certain action.” Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F. 2d 929, 938 (CADC 1988) (quoting Diggs v. Richardson, 555 F. 2d 848, 851 (CADC 1976); internal quotation marks omitted). See also Foster, 2 Pet., at 314, 315 (holding a treaty non-self-executing because its text—“ ‘all . . . grants of land . . . shall be ratified and confirmed’ ”—did not “act directly on the grants” but rather “pledge[d] the faith of the United States to pass acts which shall ratify and confirm them”). In other words, the U. N. Charter reads like “a compact between independent nations” that “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Head Money Cases, 112 U. S., at 598.[Footnote 5] The remainder of Article 94 confirms that the U. N. Charter does not contemplate the automatic enforceability of ICJ decisions in domestic courts.[Footnote 6] Article 94(2)—the enforcement provision—provides the sole remedy for noncompliance: referral to the United Nations Security Council by an aggrieved state. 59 Stat. 1051. The U. N. Charter’s provision of an express diplomatic—that is, nonjudicial—remedy is itself evidence that ICJ judgments were not meant to be enforceable in domestic courts. See Sanchez-Llamas, 548 U. S., at 347. And even this “quintessentially international remed[y],” id., at 355, is not absolute. First, the Security Council must “dee[m] necessary” the issuance of a recommendation or measure to effectuate the judgment. Art. 94(2), 59 Stat. 1051. Second, as the President and Senate were undoubtedly aware in subscribing to the U. N. Charter and Optional Protocol, the United States retained the unqualified right to exercise its veto of any Security Council resolution. This was the understanding of the Executive Branch when the President agreed to the U. N. Charter and the declaration accepting general compulsory ICJ jurisdiction. See, e.g., The Charter of the United Nations for the Maintenance of International Peace and Security: Hearings before the Senate Committee on Foreign Relations, 79th Cong., 1st Sess., 124–125 (1945) (“[I]f a state fails to perform its obligations under a judgment of the [ICJ], the other party may have recourse to the Security Council”); id., at 286 (statement of Leo Paslovsky, Special Assistant to the Secretary of State for International Organizations and Security Affairs) (“[W]hen the Court has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal. It is as a political dispute that the matter is referred to the Security Council”); A Resolution Proposing Acceptance of Compulsory Jurisdiction of International Court of Justice: Hearings on S. Res. 196 before the Subcommittee of the Senate Committee on Foreign Relations, 79th Cong., 2d Sess., 142 (1946) (statement of Charles Fahy, State Dept. Legal Adviser) (while parties that accept ICJ jurisdiction have “a moral obligation” to comply with ICJ decisions, Article 94(2) provides the exclusive means of enforcement). If ICJ judgments were instead regarded as automatically enforceable domestic law, they would be immediately and directly binding on state and federal courts pursuant to the Supremacy Clause. Mexico or the ICJ would have no need to proceed to the Security Council to enforce the judgment in this case. Noncompliance with an ICJ judgment through exercise of the Security Council veto—always regarded as an option by the Executive and ratifying Senate during and after consideration of the U. N. Charter, Optional Protocol, and ICJ Statute—would no longer be a viable alternative. There would be nothing to veto. In light of the U. N. Charter’s remedial scheme, there is no reason to believe that the President and Senate signed up for such a result. In sum, Medellín’s view that ICJ decisions are automatically enforceable as domestic law is fatally undermined by the enforcement structure established by Article 94. His construction would eliminate the option of noncompliance contemplated by Article 94(2), undermining the ability of the political branches to determine whether and how to comply with an ICJ judgment. Those sensitive foreign policy decisions would instead be transferred to state and federal courts charged with applying an ICJ judgment directly as domestic law. And those courts would not be empowered to decide whether to comply with the judgment—again, always regarded as an option by the political branches—any more than courts may consider whether to comply with any other species of domestic law. This result would be particularly anomalous in light of the principle that “[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative—‘the political’—Departments.” Oetjen v. Central Leather Co., 246 U. S. 297, 302 (1918). The ICJ Statute, incorporated into the U. N. Charter, provides further evidence that the ICJ’s judgment in Avena does not automatically constitute federal law judicially enforceable in United States courts. Art. 59, 59 Stat. 1062. To begin with, the ICJ’s “principal purpose” is said to be to “arbitrate particular disputes between national governments.” Sanchez-Llamas, supra, at 355 (citing 59 Stat. 1055). Accordingly, the ICJ can hear disputes only between nations, not individuals. Art. 34(1), 59 Stat. 1059 (“Only states [i.e., countries] may be parties in cases before the [ICJ]”). More important, Article 59 of the statute provides that “[t]he decision of the [ICJ] has no binding force except between the parties and in respect of that particular case.” Id., at 1062 (emphasis added).[Footnote 7] The dissent does not explain how Medellín, an individual, can be a party to the ICJ proceeding. Medellín argues that because the Avena case involves him, it is clear that he—and the 50 other Mexican nationals named in the Avena decision—should be regarded as parties to the Avena judgment. Brief for Petitioner 21–22. But cases before the ICJ are often precipitated by disputes involving particular persons or entities, disputes that a nation elects to take up as its own. See, e.g., Case Concerning the Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I. C. J. 3 (Judgment of Feb. 5) (claim brought by Belgium on behalf of Belgian nationals and shareholders); Case Concerning the Protection of French Nationals and Protected Persons in Egypt (Fr. v. Egypt), 1950 I. C. J. 59 (Order of Mar. 29) (claim brought by France on behalf of French nationals and protected persons in Egypt); Anglo-Iranian Oil Co. Case (U. K. v. Iran), 1952 I. C. J. 93, 112 (Judgment of July 22) (claim brought by the United Kingdom on behalf of the Anglo-Iranian Oil Company). That has never been understood to alter the express and established rules that only nation-states may be parties before the ICJ, Art. 34, 59 Stat. 1059, and—contrary to the position of the dissent, post, at 23—that ICJ judgments are binding only between those parties, Art. 59, id., at 1062.[Footnote 8] It is, moreover, well settled that the United States’ interpretation of a treaty “is entitled to great weight.” Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184–185 (1982); see also El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U. S. 155, 168 (1999). The Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law. See Brief for United States as Amicus Curiae 4, 27–29.[Footnote 9] The pertinent international agreements, therefore, do not provide for implementation of ICJ judgments through direct enforcement in domestic courts, and “where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own.” Sanchez-Llamas, 548 U. S., at 347. B The dissent faults our analysis because it “looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language).” Post, at 26. Given our obligation to interpret treaty provisions to determine whether they are self-executing, we have to confess that we do think it rather important to look to the treaty language to see what it has to say about the issue. That is after all what the Senate looks to in deciding whether to approve the treaty. The interpretive approach employed by the Court today—resorting to the text—is hardly novel. In two early cases involving an 1819 land-grant treaty between Spain and the United States, Chief Justice Marshall found the language of the treaty dispositive. In Foster, after distinguishing between self-executing treaties (those “equivalent to an act of the legislature”) and non-self-executing treaties (those “the legislature must execute”), Chief Justice Marshall held that the 1819 treaty was non-self-executing. 2 Pet., at 314. Four years later, the Supreme Court considered another claim under the same treaty, but concluded that the treaty was self-executing. See Percheman, 7 Pet., at 87. The reason was not because the treaty was sometimes self-executing and sometimes not, but because “the language of” the Spanish translation (brought to the Court’s attention for the first time) indicated the parties’ intent to ratify and confirm the land-grant “by force of the instrument itself.” Id., at 89. As against this time-honored textual approach, the dissent proposes a multifactor, judgment-by-judgment analysis that would “jettiso[n] relative predictability for the open-ended rough-and-tumble of factors.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 547 (1995). The dissent’s novel approach to deciding which (or, more accurately, when) treaties give rise to directly enforceable federal law is arrestingly indeterminate. Treaty language is barely probative. Post, at 12–13 (“[T]he absence or presence of language in a treaty about a provision’s self-execution proves nothing at all”). Determining whether treaties themselves create federal law is sometimes committed to the political branches and sometimes to the judiciary. Post, at 13. Of those committed to the judiciary, the courts pick and choose which shall be binding United States law—trumping not only state but other federal law as well—and which shall not. Post, at 13–27. They do this on the basis of a multifactor, “context-specific” inquiry. Post, at 13. Even then, the same treaty sometimes gives rise to United States law and sometimes does not, again depending on an ad hoc judicial assessment. Post, at 13–27. Our Framers established a careful set of procedures that must be followed before federal law can be created under the Constitution—vesting that decision in the political branches, subject to checks and balances. U. S. Const., Art. I, §7. They also recognized that treaties could create federal law, but again through the political branches, with the President making the treaty and the Senate approving it. Art. II, §2. The dissent’s understanding of the treaty route, depending on an ad hoc judgment of the judiciary without looking to the treaty language—the very language negotiated by the President and approved by the Senate—cannot readily be ascribed to those same Framers. The dissent’s approach risks the United States’ involvement in international agreements. It is hard to believe that the United States would enter into treaties that are sometimes enforceable and sometimes not. Such a treaty would be the equivalent of writing a blank check to the judiciary. Senators could never be quite sure what the treaties on which they were voting meant. Only a judge could say for sure and only at some future date. This uncertainty could hobble the United States’ efforts to negotiate and sign international agreements. In this case, the dissent—for a grab bag of no less than seven reasons—would tell us that this particular ICJ judgment is federal law. Post, at 13–27. That is no sort of guidance. Nor is it any answer to say that the federal courts will diligently police international agreements and enforce the decisions of international tribunals only when they should be enforced. Ibid. The point of a non-self-executing treaty is that it “addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.” Foster, supra, at 314 (emphasis added); Whitney, 124 U. S., at 195. See also Foster, supra, at 307 (“The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided”). The dissent’s contrary approach would assign to the courts—not the political branches—the primary role in deciding when and how international agreements will be enforced. To read a treaty so that it sometimes has the effect of domestic law and sometimes does not is tantamount to vesting with the judiciary the power not only to interpret but also to create the law. C Our conclusion that Avena does not by itself constitute binding federal law is confirmed by the “postratification understanding” of signatory nations. See Zicherman, 516 U. S., at 226. There are currently 47 nations that are parties to the Optional Protocol and 171 nations that are parties to the Vienna Convention. Yet neither Medellín nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts.[Footnote 10] In determining that the Vienna Convention did not require certain relief in United States courts in Sanchez-Llamas, we found it pertinent that the requested relief would not be available under the treaty in any other signatory country. See 548 U. S., at 343–344, and n. 3. So too here the lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts. Our conclusion is further supported by general principles of interpretation. To begin with, we reiterated in Sanchez-Llamas what we held in Breard, that “ ‘absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.’ ” 548 U. S., at 351 (quoting Breard, 523 U. S., at 375). Given that ICJ judgments may interfere with state procedural rules, one would expect the ratifying parties to the relevant treaties to have clearly stated their intent to give those judgments domestic effect, if they had so intended. Here there is no statement in the Optional Protocol, the U. N. Charter, or the ICJ Statute that supports the notion that ICJ judgments displace state procedural rules. Moreover, the consequences of Medellín’s argument give pause. An ICJ judgment, the argument goes, is not only binding domestic law but is also unassailable. As a result, neither Texas nor this Court may look behind a judgment and quarrel with its reasoning or result. (We already know, from Sanchez-Llamas, that this Court disagrees with both the reasoning and result in Avena.) Medellín’s interpretation would allow ICJ judgments to override otherwise binding state law; there is nothing in his logic that would exempt contrary federal law from the same fate. See, e.g., Cook v. United States, 288 U. S. 102, 119 (1933) (later-in-time self-executing treaty supersedes a federal statue if there is a conflict). And there is nothing to prevent the ICJ from ordering state courts to annul criminal convictions and sentences, for any reason deemed sufficient by the ICJ. Indeed, that is precisely the relief Mexico requested. Avena, 2004 I. C. J., at 58–59. Even the dissent flinches at reading the relevant treaties to give rise to self-executing ICJ judgments in all cases. It admits that “Congress is unlikely to authorize automatic judicial enforceability of all ICJ judgments, for that could include some politically sensitive judgments and others better suited for enforcement by other branches.” Post, at 24. Our point precisely. But the lesson to draw from that insight is hardly that the judiciary should decide which judgments are politically sensitive and which are not. In short, and as we observed in Sanchez-Llamas, “[n]othing in the structure or purpose of the ICJ suggests that its interpretations were intended to be conclusive on our courts.” 548 U. S., at 354. Given that holding, it is difficult to see how that same structure and purpose can establish, as Medellín argues, that judgments of the ICJ nonetheless were intended to be conclusive on our courts. A judgment is binding only if there is a rule of law that makes it so. And the question whether ICJ judgments can bind domestic courts depends upon the same analysis undertaken in Sanchez-Llamas and set forth above. Our prior decisions identified by the dissent as holding a number of treaties to be self-executing, see post, at 8–9, Appendix A, stand only for the unremarkable proposition that some international agreements are self-executing and others are not. It is well settled that the “[i]nterpretation of [a treaty] . . . must, of course, begin with the language of the Treaty itself.” Sumitomo Shoji America, Inc., 457 U. S., at 180. As a result, we have held treaties to be self-executing when the textual provisions indicate that the President and Senate intended for the agreement to have domestic effect. Medellín and the dissent cite Comegys v. Vasse, 1 Pet. 193 (1828), for the proposition that the judgments of international tribunals are automatically binding on domestic courts. See post, at 9; Reply Brief for Petitioner 2; Brief for Petitioner 19–20. That case, of course, involved a different treaty than the ones at issue here; it stands only for the modest principle that the terms of a treaty control the outcome of a case.[Footnote 11] We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments—only that the U. N. Charter, the Optional Protocol, and the ICJ Statute do not do so. And whether the treaties underlying a judgment are self-executing so that the judgment is directly enforceable as domestic law in our courts is, of course, a matter for this Court to decide. See Sanchez-Llamas, supra, at 353–354. D Our holding does not call into question the ordinary enforcement of foreign judgments or international arbitral agreements. Indeed, we agree with Medellín that, as a general matter, “an agreement to abide by the result” of an international adjudication—or what he really means, an agreement to give the result of such adjudication domestic legal effect—can be a treaty obligation like any other, so long as the agreement is consistent with the Constitution. See Brief for Petitioner 20. The point is that the particular treaty obligations on which Medellín relies do not of their own force create domestic law. The dissent worries that our decision casts doubt on some 70-odd treaties under which the United States has agreed to submit disputes to the ICJ according to “roughly similar” provisions. See post, at 4, 16–17. Again, under our established precedent, some treaties are self-executing and some are not, depending on the treaty. That the judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” See post, at 17; cf. post, at 11 (describing the British system in which treaties “virtually always requir[e] parliamentary legislation”). Such judgments would still constitute international obligations, the proper subject of political and diplomatic negotiations. See Head Money Cases, 112 U. S., at 598. And Congress could elect to give them wholesale effect (rather than the judgment-by-judgment approach hypothesized by the dissent, post, at 24) through implementing legislation, as it regularly has. See, e.g., Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105–277, div. G, §2242, 112 Stat. 2681–822, note following 8 U. S. C. §1231 (directing the “appropriate agencies” to “prescribe regulations to implement the obligations of the United States under Article 3” of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment); see also infra, at 25–26 (listing examples of legislation implementing international obligations). Further, that an ICJ judgment may not be automatically enforceable in domestic courts does not mean the particular underlying treaty is not. Indeed, we have held that a number of the “Friendship, Commerce, and Navigation” Treaties cited by the dissent, see post, Appendix B, are self-executing—based on “the language of the[se] Treat[ies].” See Sumitomo Shoji America, Inc., supra, at 180, 189–190. In Kolovrat v. Oregon, 366 U. S. 187, 191, 196 (1961), for example, the Court found that Yugoslavian claimants denied inheritance under Oregon law were entitled to inherit personal property pursuant to an 1881 Treaty of Friendship, Navigation, and Commerce between the United States and Serbia. See also Clark v. Allen, 331 U. S. 503, 507–511, 517–518 (1947) (finding that the right to inherit real property granted German aliens under the Treaty of Friendship, Commerce, and Consular Rights with Germany prevailed over California law). Contrary to the dissent’s suggestion, see post, at 11, neither our approach nor our cases require that a treaty provide for self-execution in so many talismanic words; that is a caricature of the Court’s opinion. Our cases simply require courts to decide whether a treaty’s terms reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect. In addition, Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes. Cf. post, at 24 (Breyer, J., dissenting). The judgments of a number of international tribunals enjoy a different status because of implementing legislation enacted by Congress. See, e.g., 22 U. S. C. §1650a(a) (“An award of an arbitral tribunal rendered pursuant to chapter IV of the [Convention on the Settlement of Investment Disputes] shall create a right arising under a treaty of the United States. The pecuniary obligations imposed by such an award shall be enforced and shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States”); 9 U. S.C. §§201–208 (“The [U. N.] Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, shall be enforced in United States courts in accordance with this chapter,” §201). Such language demonstrates that Congress knows how to accord domestic effect to international obligations when it desires such a result.[Footnote 12] Further, Medellín frames his argument as though giving the Avena judgment binding effect in domestic courts simply conforms to the proposition that domestic courts generally give effect to foreign judgments. But Medellín does not ask us to enforce a foreign-court judgment settling a typical commercial or property dispute. See, e.g., Hilton v. Guyot, 159 U. S. 113 (1895); United States v. Arredondo, 6 Pet. 691 (1832); see also Uniform Foreign Money-Judgments Recognition Act §1(2), 13 U. L. A., pt. 2, p. 44 (2002) (“ ‘[F]oreign judgment’ means any judgment of a foreign state granting or denying recovery of a sum of money”). Rather, Medellín argues that the Avena judgment has the effect of enjoining the operation of state law. What is more, on Medellín’s view, the judgment would force the State to take action to “review and reconside[r]” his case. The general rule, however, is that judgments of foreign courts awarding injunctive relief, even as to private parties, let alone sovereign States, “are not generally entitled to enforcement.” See 2 Restatement §481, Comment b, at 595. In sum, while the ICJ’s judgment in Avena creates an international law obligation on the part of the United States, it does not of its own force constitute binding federal law that pre-empts state restrictions on the filing of successive habeas petitions. As we noted in Sanchez-Llamas, a contrary conclusion would be extraordinary, given that basic rights guaranteed by our own Constitution do not have the effect of displacing state procedural rules. See 548 U. S., at 360. Nothing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by “many of our most fundamental constitutional protections.” Ibid. III Medellín next argues that the ICJ’s judgment in Avena is binding on state courts by virtue of the President’s February 28, 2005 Memorandum. The United States contends that while the Avena judgment does not of its own force require domestic courts to set aside ordinary rules of procedural default, that judgment became the law of the land with precisely that effect pursuant to the President’s Memorandum and his power “to establish binding rules of decision that preempt contrary state law.” Brief for United States as Amicus Curiae 5. Accordingly, we must decide whether the President’s declaration alters our conclusion that the Avena judgment is not a rule of domestic law binding in state and federal courts.[Footnote 13] A The United States maintains that the President’s constitutional role “uniquely qualifies” him to resolve the sensitive foreign policy decisions that bear on compliance with an ICJ decision and “to do so expeditiously.” Brief for United States as Amicus Curiae 11, 12. We do not question these propositions. See, e.g., First Nat. City Bank v. Banco Nacional de Cuba, 406 U. S. 759, 767 (1972) (plurality opinion) (The President has “the lead role . . . in foreign policy”); American Ins. Assn. v. Garamendi, 539 U. S. 396, 414 (2003) (Article II of the Constitution places with the President the “ ‘vast share of responsibility for the conduct of our foreign relations’ ” (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952) (Frankfurter, J., concurring)). In this case, the President seeks to vindicate United States interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. These interests are plainly compelling. Such considerations, however, do not allow us to set aside first principles. The President’s authority to act, as with the exercise of any governmental power, “must stem either from an act of Congress or from the Constitution itself.” Youngstown, supra, at 585; Dames & Moore v. Regan, 453 U. S. 654, 668 (1981). Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action in this area. First, “[w]hen the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown, 343 U. S., at 635 (Jackson, J., concurring). Second, “[w]hen the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.” Id., at 637. In this circumstance, Presidential authority can derive support from “congressional inertia, indifference or quiescence.” Ibid. Finally, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.” Id., at 637–638. B The United States marshals two principal arguments in favor of the President’s authority “to establish binding rules of decision that preempt contrary state law.” Brief for United States as Amicus Curiae 5. The Solicitor General first argues that the relevant treaties give the President the authority to implement the Avena judgment and that Congress has acquiesced in the exercise of such authority. The United States also relies upon an “independent” international dispute-resolution power wholly apart from the asserted authority based on the pertinent treaties. Medellín adds the additional argument that the President’s Memorandum is a valid exercise of his power to take care that the laws be faithfully executed. 1 The United States maintains that the President’s Memorandum is authorized by the Optional Protocol and the U. N. Charter. Brief for United States as Amicus Curiae 9. That is, because the relevant treaties “create an obligation to comply with Avena,” they “implicitly give the President authority to implement that treaty-based obligation.” Id., at 11 (emphasis added). As a result, the President’s Memorandum is well grounded in the first category of the Youngstown framework. We disagree. The President has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress. Foster, 2 Pet., at 315; Whitney, 124 U. S., at 194; Igartúa-De La Rosa, 417 F. 3d, at 150. As this Court has explained, when treaty stipulations are “not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney, supra, at 194. Moreover, “[u]ntil such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.” Foster, supra, at 315. The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to “make” a treaty. Art. II, §2. If the Executive determines that a treaty should have domestic effect of its own force, that determination may be implemented “in mak[ing]” the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, ibid., consistent with all other constitutional restraints. Once a treaty is ratified without provisions clearly according it domestic effect, however, whether the treaty will ever have such effect is governed by the fundamental constitutional principle that “ ‘[t]he power to make the necessary laws is in Congress; the power to execute in the President.’ ” Hamdan v. Rumsfeld, 548 U. S. 557, 591 (2006) (quoting Ex parte Milligan, 4 Wall. 2, 139 (1866) (opinion of Chase, C. J.)); see U. S. Const., Art. I, §1 (“All legislative Powers herein granted shall be vested in a Congress of the United States”). As already noted, the terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto. See Art. I, §7. Indeed, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Youngstown, 343 U. S., at 587. A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force. That understanding precludes the assertion that Congress has implicitly authorized the President—acting on his own—to achieve precisely the same result. We therefore conclude, given the absence of congressional legislation, that the non-self-executing treaties at issue here did not “express[ly] or implied[ly]” vest the President with the unilateral authority to make them self-executing. See id., at 635 (Jackson, J., concurring). Accordingly, the President’s Memorandum does not fall within the first category of the Youngstown framework. Indeed, the preceding discussion should make clear that the non-self-executing character of the relevant treaties not only refutes the notion that the ratifying parties vested the President with the authority to unilaterally make treaty obligations binding on domestic courts, but also implicitly prohibits him from doing so. When the President asserts the power to “enforce” a non-self-executing treaty by unilaterally creating domestic law, he acts in conflict with the implicit understanding of the ratifying Senate. His assertion of authority, insofar as it is based on the pertinent non-self-executing treaties, is therefore within Justice Jackson’s third category, not the first or even the second. See id., at 637–638. Each of the two means described above for giving domestic effect to an international treaty obligation under the Constitution—for making law—requires joint action by the Executive and Legislative Branches: The Senate can ratify a self-executing treaty “ma[de]” by the Executive, or, if the ratified treaty is not self-executing, Congress can enact implementing legislation approved by the President. It should not be surprising that our Constitution does not contemplate vesting such power in the Executive alone. As Madison explained in The Federalist No. 47, under our constitutional system of checks and balances, “[t]he magistrate in whom the whole executive power resides cannot of himself make a law.” J. Cooke ed., p. 326 (1961). That would, however, seem an apt description of the asserted executive authority unilaterally to give the effect of domestic law to obligations under a non-self-executing treaty. The United States nonetheless maintains that the President’s Memorandum should be given effect as domestic law because “this case involves a valid Presidential action in the context of Congressional ‘acquiescence’.” Brief for United States as Amicus Curiae 11, n. 2. Under the Youngstown tripartite framework, congressional acquiescence is pertinent when the President’s action falls within the second category—that is, when he “acts in absence of either a congressional grant or denial of authority.” 343 U. S., at 637 (Jackson, J., concurring). Here, however, as we have explained, the President’s effort to accord domestic effect to the Avena judgment does not meet that prerequisite. In any event, even if we were persuaded that congressional acquiescence could support the President’s asserted authority to create domestic law pursuant to a non-self-executing treaty, such acquiescence does not exist here. The United States first locates congressional acquiescence in Congress’s failure to act following the President’s resolution of prior ICJ controversies. A review of the Executive’s actions in those prior cases, however, cannot support the claim that Congress acquiesced in this particular exercise of Presidential authority, for none of them remotely involved transforming an international obligation into domestic law and thereby displacing state law.[Footnote 14] The United States also directs us to the President’s “related” statutory responsibilities and to his “established role” in litigating foreign policy concerns as support for the President’s asserted authority to give the ICJ’s decision in Avena the force of domestic law. Brief for United States as Amicus Curiae 16–19. Congress has indeed authorized the President to represent the United States before the United Nations, the ICJ, and the Security Council, 22 U. S. C. §287, but the authority of the President to represent the United States before such bodies speaks to the President’s international responsibilities, not any unilateral authority to create domestic law. The authority expressly conferred by Congress in the international realm cannot be said to “invite” the Presidential action at issue here. See Youngstown, supra, at 637 (Jackson, J., concurring). At bottom, none of the sources of authority identified by the United States supports the President’s claim that Congress has acquiesced in his asserted power to establish on his own federal law or to override state law. None of this is to say, however, that the combination of a non-self-executing treaty and the lack of implementing legislation precludes the President from acting to comply with an international treaty obligation. It is only to say that the Executive cannot unilaterally execute a non-self-executing treaty by giving it domestic effect. That is, the non-self-executing character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts. The President may comply with the treaty’s obligations by some other means, so long as they are consistent with the Constitution. But he may not rely upon a non-self-executing treaty to “establish binding rules of decision that preempt contrary state law.” Brief for United States as Amicus Curiae 5. 2 We thus turn to the United States’ claim that—independent of the United States’ treaty obligations—the Memorandum is a valid exercise of the President’s foreign affairs authority to resolve claims disputes with foreign nations. Id., at 12–16. The United States relies on a series of cases in which this Court has upheld the authority of the President to settle foreign claims pursuant to an executive agreement. See Garamendi, 539 U. S., at 415; Dames & Moore, 453 U. S., at 679–680; United States v. Pink, 315 U. S. 203, 229 (1942); United States v. Belmont, 301 U. S. 324, 330 (1937). In these cases this Court has explained that, if pervasive enough, a history of congressional acquiescence can be treated as a “gloss on ‘Executive Power’ vested in the President by §1 of Art. II.” Dames & Moore, supra, at 686 (some internal quotation marks omitted). This argument is of a different nature than the one rejected above. Rather than relying on the United States’ treaty obligations, the President relies on an independent source of authority in ordering Texas to put aside its procedural bar to successive habeas petitions. Nevertheless, we find that our claims-settlement cases do not support the authority that the President asserts in this case. The claims-settlement cases involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. See, e.g., Belmont, supra, at 327. They are based on the view that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” can “raise a presumption that the [action] had been [taken] in pursuance of its consent.” Dames & Moore, supra, at 686 (some internal quotation marks omitted). As this Court explained in Garamendi, Making executive agreements to settle claims of American nationals against foreign governments is a particularly longstanding practice … . Given the fact that the practice goes back over 200 years, and has received congressional acquiescence throughout its history, the conclusion that the President’s control of foreign relations includes the settlement of claims is indisputable. 539 U. S., at 415 (internal quotation marks and brackets omitted). Even still, the limitations on this source of executive power are clearly set forth and the Court has been careful to note that “[p]ast practice does not, by itself, create power.” Dames & Moore, supra, at 686. The President’s Memorandum is not supported by a “particularly longstanding practice” of congressional acquiescence, see Garamendi, supra, at 415, but rather is what the United States itself has described as “unprecedented action,” Brief for United States as Amicus Curiae in Sanchez-Llamas, O. T. 2005, Nos. 05–51 and 04–10566, pp. 29–30. Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to state courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws. Cf. Brecht v. Abrahamson, 507 U. S. 619, 635 (1993) (“States possess primary authority for defining and enforcing the criminal law” (quoting Engle v. Isaac, 456 U. S. 107, 128 (1982); internal quotation marks omitted). The Executive’s narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memorandum. 3 Medellín argues that the President’s Memorandum is a valid exercise of his “Take Care” power. Brief for Petitioner 28. The United States, however, does not rely upon the President’s responsibility to “take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §3. We think this a wise concession. This authority allows the President to execute the laws, not make them. For the reasons we have stated, the Avena judgment is not domestic law; accordingly, the President cannot rely on his Take Care powers here. The judgment of the Texas Court of Criminal Appeals is affirmed. It is so ordered. Footnote 1 The requirement of Article 36(1)(b) of the Vienna Convention that the detaining state notify the detainee’s consulate “without delay” is satisfied, according to the ICJ, where notice is provided within three working days. Avena, 2004 I. C. J. 12, 52, ¶97 (Judgment of Mar. 31). See Sanchez-Llamas v. Oregon, 548 U. S. 331, 362 (2006) (Ginsburg, J., concurring in judgment). Here, Medellín confessed within three hours of his arrest—before there could be a violation of his Vienna Convention right to consulate notification. App. to Brief for Respondent 32–36. In a second state habeas application, Medellín sought to expand his claim of prejudice by contending that the State’s noncompliance with the Vienna Convention deprived him of assistance in developing mitigation evidence during the capital phase of his trial. This argument, however, was likely waived: Medellín had the assistance of consulate counsel during the preparation of his first application for state postconviction relief, yet failed to raise this argument at that time. See Application for Writ of Habeas Corpus in Ex parte Medellín, No. 675430–A (Tex. Crim. App.), pp. 25–31. In light of our disposition of this case, we need not consider whether Medellín was prejudiced in any way by the violation of his Vienna Convention rights. Footnote 2 The label “self-executing” has on occasion been used to convey different meanings. What we mean by “self-executing” is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress. Footnote 3 Even when treaties are self-executing in the sense that they create federal law, the background presumption is that “[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.” 2 Restatement (Third) of Foreign Relations Law of the United States §907, Comment a, p. 395 (1986) (hereinafter Restatement). Accordingly, a number of the Courts of Appeals have presumed that treaties do not create privately enforceable rights in the absence of express language to the contrary. See, e.g., United States v. Emuegbunam, 268 F. 3d 377, 389 (CA6 2001); United States v. Jimenez-Nava, 243 F. 3d 192, 195 (CA5 2001); United States v. Li, 206 F. 3d 56, 60–61 (CA1 2000) (en banc); Goldstar (Panama) S. A. v. United States, 967 F. 2d 965, 968 (CA4 1992); Canadian Transp. Co. v. United States, 663 F. 2d 1081, 1092 (CADC 1980); Mannington Mills, Inc. v. Congoleum Corp., 595 F. 2d 1287, 1298 (CA3 1979). Footnote 4 The question is whether the Avena judgment has binding effect in domestic courts under the Optional Protocol, ICJ Statute, and U. N. Charter. Consequently, it is unnecessary to resolve whether the Vienna Convention is itself “self-executing” or whether it grants Medellín individually enforceable rights. See Reply Brief for Petitioner 5 (disclaiming reliance on the Vienna Convention). As in Sanchez-Llamas, 548 U. S., at 342–343, we thus assume, without deciding, that Article 36 grants foreign nationals “an individually enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification.” Footnote 5 We do not read “undertakes” to mean that “ ‘ “[t]he United States . . . shall be at liberty to make respecting th[e] matter, such laws as they think proper.” ’ ” Post, at 17–18 (Breyer, J., dissenting) (quoting Todok v. Union State Bank of Harvard, 281 U. S. 449, 453, 454 (1930) (holding that a treaty with Norway did not “operat[e] to override the law of [Nebraska] as to the disposition of homestead property”)). Whether or not the United States “undertakes” to comply with a treaty says nothing about what laws it may enact. The United States is always “at liberty to make . . . such laws as [it] think[s] proper.” Id., at 453. Indeed, a later-in-time federal statute supersedes inconsistent treaty provisions. See, e.g., Cook v. United States, 288 U. S. 102, 119–120 (1933). Rather, the “undertakes to comply” language confirms that further action to give effect to an ICJ judgment was contemplated, contrary to the dissent’s position that such judgments constitute directly enforceable federal law, without more. See also post, at 1–3 (Stevens, J., concurring in judgment). Footnote 6 Article 94(2) provides in full: “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” 59 Stat. 1051. Footnote 7 Medellín alters this language in his brief to provide that the ICJ Statute makes the Avena judgment binding “in respect of [his] particular case.” Brief for Petitioner 22 (internal quotation marks omitted). Medellín does not and cannot have a case before the ICJ under the terms of the ICJ Statute. Footnote 8 The dissent concludes that the ICJ judgment is binding federal law based in large part on its belief that the Vienna Convention overrides contrary state procedural rules. See post, at 19–20, 20–21, 23. But not even Medellín relies on the Convention. See Reply Brief for Petitioner 5 (disclaiming reliance). For good reason: Such reliance is foreclosed by the decision of this Court in Sanchez-Llamas, 548 U. S., at 351 (holding that the Convention does not preclude the application of state procedural bars); see also id., at 363 (Ginsburg, J., concurring in judgment). There is no basis for relitigating the issue. Further, to rely on the Convention would elide the distinction between a treaty—negotiated by the President and signed by Congress—and a judgment rendered pursuant to those treaties. Footnote 9 In interpreting our treaty obligations, we also consider the views of the ICJ itself, “giv[ing] respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret [the treaty].” Breard v. Greene, 523 U. S. 371, 375 (1998) (per curiam); see Sanchez-Llamas, supra, at 355–356. It is not clear whether that principle would apply when the question is the binding force of ICJ judgments themselves, rather than the substantive scope of a treaty the ICJ must interpret in resolving disputes. Cf. Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 805 (1985) (“[A] court adjudicating a dispute may not be able to predetermine the res judicata effect of its own judgment”); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4405, p. 82 (2d ed. 2002) (“The first court does not get to dictate to other courts the preclusion consequences of its own judgment”). In any event, nothing suggests that the ICJ views its judgments as automatically enforceable in the domestic courts of signatory nations. The Avena judgment itself directs the United States to provide review and reconsideration of the affected convictions and sentences “by means of its own choosing.” 2004 I. C. J., at 72 (emphasis added). This language, as well as the ICJ’s mere suggestion that the “judicial process” is best suited to provide such review, id., at 65–66, confirm that domestic enforceability in court is not part and parcel of an ICJ judgment. Footnote 10 The best that the ICJ experts as amici curiae can come up with is the contention that local Moroccan courts have referred to ICJ judgments as “dispositive.” Brief for ICJ Experts as Amici Curiae 20, n. 31. Even the ICJ experts do not cite a case so holding, and Moroccan practice is at best inconsistent, for at least one local Moroccan court has held that ICJ judgments are not binding as a matter of municipal law. See, e.g., Mackay Radio & Tel. Co. v. Lal-La Fatma Bent si Mohamed el Khadar, [1954] 21 Int’l L. Rep. 136 (Tangier, Ct. App. Int’l Trib.) (holding that ICJ decisions are not binding on Morocco’s domestic courts); see also “Socobel” v. Greek State, [1951] 18 Int’l L. Rep. 3 (Belg., Trib. Civ. de Bruxelles) (holding that judgments of the ICJ’s predecessor, the Permanent Court of International Justice, were not domestically enforceable). Footnote 11 The other case Medellín cites for the proposition that the judgments of international courts are binding, La Abra Silver Mining Co. v. United States, 175 U. S. 423 (1899), and the cases he cites for the proposition that this Court has routinely enforced treaties under which foreign nationals have asserted rights, similarly stand only for the principle that the terms of a treaty govern its enforcement. See Reply Brief for Petitioner 4, 5, n. 2. In each case, this Court first interpreted the treaty prior to finding it domestically enforceable. See, e.g., United States v. Rauscher, 119 U. S. 407, 422–423 (1886) (holding that the treaty required extradition only for specified offenses); Hopkirk v. Bell, 3 Cranch 454, 458 (1806) (holding that the treaty of peace between Great Britain and the United States prevented the operation of a state statute of limitations on British debts). Footnote 12 That this Court has rarely had occasion to find a treaty non-self-executing is not all that surprising. See post, at 8 (Breyer, J., dissenting). To begin with, the Courts of Appeals have regularly done so. See, e.g., Pierre v. Gonzales, 502 F. 3d 109, 119–120 (CA2 2007) (holding that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is non-self-executing); Singh v. Ashcroft, 398 F. 3d 396, 404, n. 3 (CA6 2005) (same); Beazley v. Johnson, 242 F. 3d 248, 267 (CA5 2001) (holding that the International Covenant on Civil and Political Rights is non-self-executing). Further, as noted, Congress has not hesitated to pass implementing legislation for treaties that in its view require such legislation. Footnote 13 The dissent refrains from deciding the issue, but finds it “difficult to believe that in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law.” Post, at 29. We agree. The questions here are the far more limited ones of whether he may unilaterally create federal law by giving effect to the judgment of this international tribunal pursuant to this non-self-executing treaty, and, if not, whether he may rely on other authority under the Constitution to support the action taken in this particular case. Those are the only questions we decide. Footnote 14 Rather, in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U. S.), 1986 I. C. J. 14 (Judgment of June 27), the President determined that the United States would not comply with the ICJ’s conclusion that the United States owed reparations to Nicaragua. In the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U. S./em>.), 1984 I. C. J. 246 (Judgment of Oct. 12), a federal agency—the National Oceanic and Atmospheric Administration—issued a final rule which complied with the ICJ’s boundary determination. The Case Concerning Rights of Nationals of the United States of America in Morocco (Fr. v. U. S.), 1952 I. C. J. 176 (Judgment of Aug. 27), concerned the legal status of United States citizens living in Morocco; it was not enforced in United States courts. The final two cases arose under the Vienna Convention. In the Lagrand Case (F. R. G. v. U. S.), 2001 I. C. J. 466 (Judgment of June 27), the ICJ ordered the review and reconsideration of convictions and sentences of German nationals denied consular notification. In response, the State Department sent letters to the States “encouraging” them to consider the Vienna Convention in the clemency process. Brief for United States as Amicus Curiae 20–21. Such encouragement did not give the ICJ judgment direct effect as domestic law; thus, it cannot serve as precedent for doing so in which Congress might be said to have acquiesced. In the Case Concerning the Vienna Convention on Consular Relations (Para. v. U. S.), 1998 I. C. J. 248 (Judgment of Apr. 9), the ICJ issued a provisional order, directing the United States to “take all measures at its disposal to ensure that [Breard] is not executed pending the final decision in [the ICJ’s] proceedings.” Breard, 523 U. S., at 374 (internal quotation marks omitted). In response, the Secretary of State sent a letter to the Governor of Virginia requesting that he stay Breard’s execution. Id., at 378. When Paraguay sought a stay of execution from this Court, the United States argued that it had taken every measure at its disposal: because “our federal system imposes limits on the federal government’s ability to interfere with the criminal justice systems of the States,” those measures included “only persuasion,” not “legal compulsion.” Brief for United States as Amicus Curiae, O. T. 1997, No. 97–8214, p. 51. This of course is precedent contrary to the proposition asserted by the Solicitor General in this case.
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